MySpace and § 230 Immunity

This post deals with an issue I've addressed before, i.e., whether the operator of a website can be held liable for what is posted on the site.

As I explained in prior posts, § 230 of the Communications Decency Act (47 U.S. Code § 230) immunizes certain parties from liability based upon content they post online. A few months ago, the California Court of Appeals was called upon to decide if § 230 immunity applies to MySpace.

The decision issued in Doe II v. MySpace Inc., 175 Cal.App.4th 561, 96 Cal.Rptr.3d 148 (California Court of Appeals 2009). It addressed claims raised in four cases that were consolidated because they all involved

similar facts and essentially identical legal allegations. In each case, one or more `Julie Does --girls aged 13 to 15 -- were sexually assaulted by men they met through the internet social networking site, MySpace.com (MySpace). The Julie Does, through their parents or guardians, have sued MySpace for negligence, gross negligence, and strict product liability.

Doe II v. MySpace Inc., supra. This is how the Court of Appeals summarized the facts and legal claims advanced in the four suits:

Then 15-year-old Julie Doe II created a MySpace profile in 2005. In 2006, she met a 22-year-old man through MySpace and was sexually assaulted by him at an in-person meeting. As a result, he is currently serving 10 years in prison. Julie Doe III was also 15 when she created a MySpace profile. She subsequently met a 25-year-old man on MySpace, who `lured Julie Doe from her home, heavily drugged her, and brutally sexually assaulted her.’ Julie Doe III's attacker pled guilty to charges stemming from the incident and is currently serving 10 years in prison. Julie Doe IV was 13 years old when she created a MySpace profile. In 2006, she turned 14 years old and met an 18-year-old MySpace user. He and his adult friend met Julie Doe IV, drugged her and took turns sexually assaulting her. As of August 2007, the 18-year-old user is awaiting trial while his friend pled guilty to second-degree felony rape and was sentenced to 4 and one-half years in prison. In 2006, 14-year-old Julie Doe V and 15-year-old Julie Doe VI each met 18-year-old and 19-year-old men on MySpace and were later sexually assaulted by the men at in-person meetings. . . .

The appellants each bring substantially identical causes of action against MySpace for negligence, gross negligence, and strict product liability. In summary, they complain that `MySpace has made a decision to not implement reasonable, basic safety precautions with regard to protecting young children from sexual predators[.] MySpace is aware of the dangers that it poses to underaged minors using [its Web site]. MySpace is aware that its Web site poses a danger to children, facilitating an astounding number of attempted and actual sexual assaults. . . .’ They more specifically allege that MySpace should have implemented `readily available and practicable age-verification software’ or set the default security setting on the Julie Does' accounts to `private.’

Doe II v. MySpace Inc., supra.

MySpace demurred in all four cases. Doe II v. MySpace Inc., supra. As Wikipedia explains, a demurrer is “filed by a party defending against claims . . . in a lawsuit. The demurrer challenges whether a legal cause of action exists for the facts, as stated by the complaining party.” MySpace’s demurrers were based on § 230immunity, i.e., it said the plaintiff’s claims were barred by the immunity the statute confers on certain parties who post or host content online. Doe II v. MySpace Inc., supra. The trial courts granted the demurrers in each of the four cases and therefore dismissed the suits; the plaintiffs appealed and the appeals were consolidated as Doe II v. MySpace Inc., supra.

MySpace’s immunity claim was primarily based on 47 U.S. Code § 230(c)(1), which provides as follows: “No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230(e)(3) applies this provision to civil claims brought under state law; it states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

The Court of Appeals began its analysis of the immunity issue by noting that § 230 immunity requires proof of three elements:

(1) MySpace is an interactive computer services provider, (2) MySpace is not an information content provider with respect to the disputed activity, and (3) appellants seek to hold MySpace liable for information originating with a third party user of its service.

Doe II v. MySpace Inc., supra. The appellants relied on the last two elements, “arguing that they view MySpace as an information content provider and do not hold it liable for the communications between the Julie Does and their assailants, but for . . . failure to institute reasonable security measures.” Doe II v. MySpace Inc., supra.

The Court of Appeals began its ruling on the third element by noting that § 230 immunity is to be construed broadly; Congress wanted to immunize Internet services providers from civil liability in order to minimize restrictions on online speech. Doe II v. MySpace Inc., supra. The court consequently found that § 230 immunity shielded MySpace:

That appellants characterize their complaint as one for failure to adopt reasonable safety measures does not avoid . . . section 230. It is undeniable that [they] seek to hold MySpace responsible for the communications between the Julie Does and their assailants. At its core, appellants want MySpace to regulate what appears on its Web site. Appellants argue they do not `allege liability on account of MySpace's exercise of a publisher's traditional editorial functions, such as . . . deciding whether . . . to publish certain material, which is the test for whether a claim treats a website as a publisher’. . . . But that is precisely what they allege; that is, they want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity -- to restrict or make available certain material -- is expressly covered by section 230.

Doe II v. MySpace Inc., supra.

The Court of Appeals then turned to the second issue, i.e., whether MySpace was, or was not, an information content provider “with respect to the disputed activity”. Doe II v. MySpace Inc., supra. The appellants claimed it was an information content provider and

thus is not immunized by section 230. According to appellants, `MySpace acted as a content provider when it collaborated with the Does and their eventual attackers to create and then flesh out their MySpace profiles. . . . MySpace also acted as a content provider when it allowed the attackers to channel information in profiles, search and browse profiles for particular characteristics and then use the results of those queries to locate, contact, and eventually sexually assault the Julie Does.’

Doe II v. MySpace Inc., supra. The appellants relied on the U.S. Court of Appeals for the Ninth Circuit's ruling in Fair Housing Council v. Roommates.Com. Roommates.com

ran a Web site to match people renting out spare rooms with people looking for a place to live. Before a subscriber can search listings or post housing opportunities on the Web site, he or she was required to answer a series of questions about his or her sex, sexual orientation, and whether he or she would bring children to a household.

Doe II v. MySpace Inc., supra. When Roommates.com was sued for violating various fair housing laws, the Ninth Circuit held it was an information content provider as to these questions because it created them, presented a limited choice of answers to the questions and designed its “systems to limit listings based on sex, sexual orientation, and presence of children. Further, Roommates.com forced subscribers to answer these questions as a condition of using its services.” Doe II v. MySpace Inc., supra. The Ninth Circuit held that the site lost § 230 immunity for these questions but retained it for other portions of the site. Doe II v. MySpace Inc., supra.

The California Court of Appeals held that the Ninth Circuit’s holding in Roommates.com did not apply to the case before it because the appellants did not claim that “MySpace's profile questions are discriminatory or otherwise illegal” or that it requires “members to answer the profile questions as a condition of using the site.” Doe II v. MySpace Inc., supra. It noted that the strongest case for applying § 230 immunity exists when a site gives users “unfettered discretion as to what they” post, which is not true of MySpace:

Myspace members are not allowed unfettered discretion as to what they put in their profile. Instead, it is alleged that MySpace users are urged to follow the on-screen prompts to enter a name, email address, gender, postal code, and date of birth. Users are also `encouraged’ to enter personal information such as schools, interests and personality and background and lifestyle. This information is organized by the site and is searchable by other users.

Doe II v. MySpace Inc., supra. The court ultimately found that this was not enough to transform MySpace into an information content provider and deprive it of § 230 immunity. The California Court of Appeals based its holding on the fact that the appellants presented no evidence that MySpace did nothing to encourage the posting of the content at issue in the suit. Doe II v. MySpace Inc., supra. The appellate court therefore affirmed the lower courts’ dismissal of the four actions against MySpace. Doe II v. MySpace Inc., supra.

A federal district court judge reached the same conclusion in Doe v. MySpace, Inc., 629 F. Supp.2d 663 (U.S. District Court for the Eastern District of Texas 2009). The plaintiff in this case also sued MySpace for “negligence, gross negligence and strict product liability for failing to implement reasonable safety measures to protect minors” after her daughter was allegedly “`lured from her home and sexually assaulted by a sexual predator, who . . . orchestrated his sexual assault through the MySpace.com website.’” Doe v. MySpace, supra. This plaintiff also relied on the Ninth Circuit’s Roommates.com decision in arguing that MySpace is an “information content provider” which is not entitled to § 230 immunity. The judge in this Doe case held that the Ninth Circuit’s decision did not apply here:

The Ninth Circuit repeatedly stated . . . that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, and information content provider. Here, however, users of MySpace.com are not required to provide any additional information to their profiles. . . . As such, the court finds that the Plaintiff's argument lacks merit because the facts of the instant case are distinguishable from those in Roommates.com.

Doe v. MySpace, inc., supra.

Judicial Notice and Websites

As Wikipedia notes, judicial notice is an evidentiary principle that “allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted.” As Wikipedia explains, a party must ask a court to take judicial notice of a particular fact, and facts “admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence”.

The permissibility and practice of taking judicial notice of a fact is governed by rules of evidence. Rule 201 of the Federal Rules of Evidence governs judicial notice in federal criminal and civil trials. Rule 201(b) specifies the kinds of facts of which judicial notice can be taken:

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Under Rule 201, judicial notice can be discretionary (“A court may take judicial notice, whether requested or not”) or mandatory (“A court shall take judicial notice if requested by a party and supplied with the necessary information). Rule 20(c)-(d). Under Rule 201(e), a party to the proceeding is entitled “upon timely request to an opportunity to be heard as to the propriety of taking judicial notice”.

The effect of a court’s taking judicial notice of a fact differs in civil and criminal cases. In a civil trial, the court will “instruct the jury to accept as conclusive any fact [it] judicially noticed.” Rule 201(g) of the Federal Rules of Evidence. In other words, the opposing party isn’t entitled to rebut a fact that has been judicially noticed. In criminal cases, the court will “instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed” by the court. Rule 201(g). Criminal defendants are entitled to attempt to rebut judicially noticed facts; the premise here is that requiring a “jury in a criminal case to accept as conclusive any fact judicially noticed” is inconsistent with the Sixth Amendment right to jury trial in criminal prosecutions. House of Representatives Report No. 93-650, 1973 WL 12555.

The question as to whether a court can take judicial notice of the contents of a website has arisen in a surprising number of cases, most of which involve government operated sites. Courts have found that it is appropriate to take judicial notice of facts posted on government-maintained sites because the contents of such sites are presumed to be authentic and reliable. See Williams v. Long, 2008 WL 4848362 (U.S. District Court for the District of Maryland 2008).

The permissibility of taking judicial notice of the contents of a website become more problematic when it’s a privately-maintained site. In Goldberg v. UBS AG, 2009 WL 3077118 (U.S. District Court for the Eastern District of New York 2009), for example, the plaintiffs wanted the court to “take judicial notice of various facts contained on UBS’s own corporate website, including the number of UBS’s worldwide offices and employees, and the fact that UBS’s Israel office is not licensed to provide banking services in Israel.” Goldberg v. UBS AG, supra. The case was a civil suit under the Anti-Terrorism Act, 18 U.S. Code § 2333 brought by the family of a man “killed in a . . . terrorist attack on a Jerusalem bus.” Goldberg v. UBS AG, supra. The plaintiffs claimed UBS was liable for the death under several theories, one of which was that it “transmit[ed] funds on behalf of a terrorist organization in violation of” the Act. Goldberg v. UBS AG, supra.

UBS moved to dismiss the plaintiff’s complaint, claiming it was legally deficient for any of several reasons. Goldberg v. UBS AG, supra. As part of that effort, UBS asked the court to take judicial notice of “various facts contained” on its website, “including the number of UBS's worldwide offices and employees, and the fact that UBS's Israel office is not licensed to provide banking services in Israel.” Goldberg v. UBS AG, supra. The judge declined to do so. He found that

[w]hile the court may take judicial notice of the contents of a website for the fact that such information was published and in the public realm, UBS attempts to introduce these facts here for their truth. . . . Facts on Defendant's own . . . website do not fall into the category of a `source[ ] whose accuracy cannot reasonably be questioned” as required by Federal Rule of Evidence 201.

Goldberg v. UBS AG, supra. In ruling on this issue, this judge noted that other courts have held that a judge can take judicial notice of, for example, the fact that articles were published in a newspaper or magazine; judicial notice is proper here because the only fact established is that the information was put into the public domain. See, e.g., Benak ex. Rel. Alliance Premier Growth Fund v. Alliance Capital Management L.P., 435 F.3d 396 (U.S. Court of Appeals for the Third Circuit 2006). Courts have found that the fact information has been published justifies judicial notice under Rule 201(b)(2).

Courts have disagreed as to whether it is proper to take judicial notice of information published on Wikipedia. In First National Bank in Sioux Falls v. First National Bank South Dakota, 2009 WL 2920812 (U.S. District Court for the District of South Dakota 2009), a federal judge took “judicial notice of population growth and geography information presented in Wikipedia” which was relevant to facts at issue in the case. The judge noted, though, that he was “relying on this source” only for a limited, specific purpose and only “because the information noted is not subject to reasonable dispute”. First National Bank in Sioux Falls v. First National Bank South Dakota, supra (citing Rule 201 of the Federal Rules of Evidence.). My guess – and it’s just a guess – that that the other side didn’t vigorously oppose the judge’s taking judicial notice of this particular information, which made it a relatively easy call.

I assume something similar accounts for what the judge did in Io Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132 (U.S. District Court for the Northern District of California 2008). The case was an action for copyright infringement and at one point the judge took “judicial notice of the Wikipedia definition of `IP address’ as to the fact that an IP address may be shared by multiple users” because he found this was “not a matter that is subject to reasonable dispute.” Io Group, Inc. v. Veoh Networks, Inc., supra.

Other courts have taken a very different view of the permissibility of taking judicial notice of facts published by Wikipedia. In Palisades Collection, L.L.C. v. Graubard, 2009 WL 1025176 (New Jersey Superior Court Appellate Divison 2009), the defendant appealed from the trial court’s entering judgment against him in a credit card collection case. The judgment came after a bench trial, i.e., after a trial to a judge instead of to jury. Palisades Collection, L.L.C. v. Graubard, supra.

At that trial, the plaintiff’s attorney moved, pursuant to New Jersey’s version of Rule 201 of the Federal Rule of Evidence, to admit into evidence

a print version of a page from the website of Wikipedia. . . . Plaintiff offered this to establish that Bank One Corporation was purchased by J.P. Morgan & Company in 2004. Against this backdrop, counsel represented to the trial judge that J.P. Morgan sold the accounts, (including defendant's account) to his client Palisades Acquisition.

Over defense counsel's objections, the trial court granted plaintiff's motion, admitting into evidence . . . the page from Wikipedia. In support of his ruling, the trial judge took judicial notice that `banks are frequently purchased.’ . . . [T]he judge also took judicial notice that `ultimately defendant's account landed at J.P. Morgan . . . [and] was assigned or sold to Palisades Assets.’

Palisades Collection, L.L.C. v. Graubard, supra.

After the trial court entered judgment for Palisades, Graubard appealed, arguing, in part, that the trial court erred in taking judicial notice of the Wikipedia page. The Appellate Division of the New Jersey Superior Court agreed with Graubard:

The trial court's acceptance of Wikipedia was contrary to the principle that judicial notice must be based upon `sources whose accuracy cannot be reasonably questioned.’ [New Jersey Rule of Evidence (b)(3)]. We come to this conclusion after reviewing Wikipedia's own self-assessment.

Wikipedia bills itself as the `online encyclopedia that anyone can edit.’ Anyone with an internet connection can create a Wikipedia account and change any entry in Wikipedia. In fact, Wikipedia warns readers that `[t]he content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields.’ Thus, it is entirely possible for a party in litigation to alter a Wikipedia article, print the article, and . . . offer it in court in support of any given position. Such a malleable source of information is inherently unreliable, and clearly not one `whose accuracy cannot be reasonably questioned.’

Palisades Collection, L.L.C. v. Graubard, supra [quoting Wikipedia’s Disclaimer Page]. Other courts have reached the same conclusion. See Flores v. State, 2008 WL 4683960 (Texas Court of Appeals 2008); Grabein v. Jupiterimages Corp., 2008 WL 2704451 (U.S. District Court for the Southern District of Florida 2008).

In the Flores case, Manuel Flores was possessing cocaine with the intent to deliver after a trial in which the jury was allowed to consider a written confession he’d given police. Flores v. State, supra. Prior to trial, Flores had moved to suppress the confession on the grounds that it was “involuntary and coerced”; the judge to whom the case was assigned denied the motion to suppress, which meant the confession was admitted into evidence. Flores v. State, supra.

On appeal, Flores argued that the trial court erred in admitting the confession which, he claimed, was the product of “the `John Reid’ technique that allegedly results in false confessions”. Flores v. State, supra. On appeal, he asked the Court of Appeals to “take judicial notice of the Wikipedia entry for the `John Reid’ technique.” Flores v. State, supra. The Court of Appeals declined to do so, noting that “`anyone can edit’” a Wikipedia entry. Flores v. State, supra.

Bivens Claims & IP Addresses

This post is about a civil action brought by a prisoner who was convicted of crimes involving child pornography and who is currently incarcerated. The case is Christie v. MacFarlane, 2009 WL 3536550 (U.S. District Court for the District of New Jersey 2009), and it involved what is known as a Bivens claim.

Bivens claims are brought under the U.S. Supreme Court’s decision in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). As Wikipedia explains, in Bivens the U.S. Supreme Court held that

an implied cause of action existed for an individual whose 4th Amendment freedom from unreasonable search and seizures had been violated by federal agents. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated.

The Bivens Court therefore reversed the district court’s order dismissing Biven’s claim on the grounds that it failed to state a legally cognizable cause of action. Bivens v. Six Unknown Named Agents, supra. As I’ve noted, a defendant in a civil case can, if the facts and law warrant doing so, file a motion to dismiss the plaintiff’s claim for failure to state a cause of action. In the federal system, such a motion is filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion asserts that even if the facts the plaintiff alleges are correct, he/she/it has no cognizable claim under the law; if the trial court finds that to be true, the judge will dismiss the claim, often ending the case.

That brings us back to Christie v. MacFarlane. In his complaint, Russell Christie (“Plaintiff”) alleged that

Special Agents Douglas MacFarlane and Bernard Riedel, Jr., in connection with a criminal investigation of Plaintiff, failed to follow procedures set forth in 18 U.S. Code § 2518 for interception of electronic communications, including failure to obtain advance judicial approval for the interceptions. More specifically, Plaintiff alleges that Agents MacFarlane and Riedel unlawfully accessed the NAMGLA [North American Man Girl Love Association] website, in April and June 2006, using an administrator level log-on provided by the website administrator, to “harvest” Internet Protocol addresses, including the IP address for a poster using the username `franklee,’ attributed by the government to Plaintiff.

Christie v. MacFarlane, supra. The defendants seem to have filed a Rule 12(b)(6) motion to dismiss this claim, since that’s the issue the court addresses in this opinion.

From the language in this paragraph, it would seem that Christie is basing his cause of action on the alleged violation of § 2518, a federal statute, instead of on a violation of the 4th Amendment. According to the district court’s opinion, though, he’s arguing that what the agents did violated the 4th Amendment and § 2518. Since another federal statute (18 U.S. Code § 2520) creates a cause of action for those whose communications have been intercepted in violation of § 2518, it seems the reference to § 2518 is either surplusage or was included to buttress the 4th Amendment claim (on the premise that the Wiretap Act, of which § 2518 is a part, is based on the 4th Amendment). I’m assuming it’s the latter, since this allegation is the basis of a Bivens claim and Bivens claims necessarily arise under the 4^th Amendment.

This wasn’t the first time Christie argued that the agents’ “harvesting” his IP address violated the 4^th Amendment. He made the same argument in a motion to suppress evidence in his criminal case. He lost on that argument because, as I explained in an earlier post, he based it on a decision of the Appellate Division of the Superior Court of New Jersey; the problem was, as I explained in the earlier post, that a decision of a state court is not binding on a federal court. The federal district court judge therefore applied decisions of other federal courts – which, as I noted, have for the most part held that the 4^th Amendment doesn’t protect IP addresses – and denied the motion to suppress. According to this news story, Christie was convicted in November of 2008 and, on June 24, 2009, was sentenced to serve 90 years.

Now, you might think that the federal district judge to which Christie’s Bivens action was assigned would simply cite the other federal judge’s decision denying the motion to suppress and use that as the basis for dismissing Christie’s Bivens claim. That may seem to make a great deal of sense given that the same law and same facts are at issue in both; the apparent problem is that one case is a civil case and one is a criminal case. They are therefore not the same proceeding, i.e., not the same case under the law.

Since there are two different cases, a court can’t simply say that, “well, you lost on that issue in the other case, so you lose on it here, as well.” It’s more complicated than that.

The federal judge who had Christie’s civil case therefore began his analysis of whether the claim should be dismissed under Rule 12(b)(6) by applying the rule the Supreme Court applies whenever a defendant in a criminal case files a civil suit claiming unconstitutional conduct in the investigation or prosecution of the criminal case. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that when someone who is a criminal defendant or who has been convicted of a crime files a civil rights suit seeking damages, the district court judge to whom the case is assigned

must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction . . .; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction . . . has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Heck v. Humphrey, supra. The Humphrey Court also held that a civil rights cause of action for damages “attributable to an unconstitutional conviction . . . does not accrue until the conviction . . . has been invalidated.” Under Humphrey, Christie’s Bivens claim wouldn’t accrue (i.e., wouldn’t come into existence) unless and until his conviction on the child pornography charges (which was based in part on the IP address evidence) was overturned by a higher court.

The Humphrey principle applied to Christie’s Bivens claim because if the federal judge who was assigned his civil suit held that what the agents did violated the 4^th Amendment, that decision “would necessarily imply the invalidity of his conviction” on the child pornography charges. Since the child pornography conviction was, in part, based on the IP address evidence, and since that evidence couldn’t have been used in the criminal case if it had been obtained in violation of the 4^th Amendment, the civil court would in effect be saying that the criminal conviction was invalid.

The judge assigned Christie’s civil suit therefore declined to address his Bivens claim:

Plaintiff presented this claim, twice, unsuccessfully, to the court in his criminal proceeding. . . . Based upon the Opinions denying Plaintiff's motions in the criminal case, it appears that all evidence supporting Plaintiff's convictions flows from the identification of Plaintiff as a particular user of the NAMGLA website, `franklee.’ Thus, it appears that a favorable outcome in this proceeding, with respect to this claim, would necessarily imply the invalidity of Plaintiff's criminal conviction. In addition, the appeal of the conviction remains pending in the Court of Appeals for the Third Circuit. Accordingly, this claim must be stayed. . . .

Should Plaintiff wish to pursue this claim, he must so advise the Court by filing a motion to re-open this matter within 60 days after his conviction has been `invalidated’ by reversal on direct appeal, issuance of a collateral order, or otherwise.

Christie v. MacFarlane, supra.

I actually don’t see why this court couldn’t dismiss Christie’s Bivens claim based on the doctrine of collateral estoppel. As Wikipedia notes, collateral estoppel is a legal doctrine that “prevents a person from relitigating an issue” even when the issue arises in two different cases. And as Wikipedia at least implicitly notes, collateral estoppel is usually applied when the case are of the same type, i.e., civil-civil or criminal-criminal.

Years ago, I wrote a law review article arguing that it can, and should, apply in “cross-over” cases, i.e., cases in which a ruling in a civil case bars relitigation of an issue in a criminal case or in which a ruling in a criminal case bars relitigation of an issue in a civil case. As I explained, it’s much harder to use a civil ruling to block litigation of an issue in a criminal case than it is to use a criminal ruling to block litigation of an issue in a civil case.

Since I wrote the article – which referred to this principle as “cross-over estoppel” – a number of courts have applied the principle. A Vermont trial court, for example, held that a plea in criminal case could be used to estop litigation of an issue in a civil case. See Normandy v. Martin, 2005 WL 6199161 (Superior Court of Vermont 2005). So, I don’t see why the decision in the criminal case couldn’t have been used to bar Christie from raising a Bivens claim based on exactly the same law and facts. Since the issue in both cases was purely an issue of law, the different burdens of proof (i.e., beyond a reasonable doubt versus preponderance of the evidence) wouldn’t matter in this context.

I assume the problem with doing this is that Christie's conviction was still in the process of being appealed and that his appeal encompassed the actions that provided the basis for his Bivens claim. So his conviction, unlike the conviction that resulted from the plea in the Martin case wasn't absolutely final. I'm not sure that would bar the use of cross-over estoppel here: If the conviction was reversed on other grounds, the reversal wouldn't revive this Bivens claim. If the conviction was reversed on the basis that the agents violated existing law by "harvesting" the IP addresses, that decision should revive Christie's Bivens claim because it would at least implicitly reverse this court's ruling on the Rule 12(b)(6) motion. If it was reversed because the Court of Appeals decided that what the agents did should violate the law but did not violate the law as existed when they "harvested" the IP addresses, I don't think the reversal could revive Christie's Bivens claim.

I'm probably making too much of this. The existing approach is probably eaiser to apply.

Access? Disruption?

As I explained in a post I did several years ago, the U.S. federal government and every U.S. state (and many other countries) make it a crime to “hack,” i.e., to gain access to a computer or computer system without being authorized to do so. As I explained, it can sometimes be difficult to determine whether what happened constituted “access,” or not.

This post is about a case in which the issue of gaining “access” to a computer came up in a rather unusual context. The case is Swearingen v. Haas Automation, Inc., 2009 WL 3818362 (U.S. District Court for the Southern District of California 2009). As is probably obvious from the case caption, it’s a civil case. It is also, in effect, a criminal case, since one of the plaintiff’s claims arises under the California computer crimes statute.

Before we get into the substance of the case, I should probably explain a bit about why a case raising a claim under a California statute was filed in a federal district court. As Wikipedia explains, U.S. federal courts have two kinds of jurisdiction, i.e., two sources of authority to hear civil cases. One is federal question jurisdiction, which lets them hear cases that present issues arising under federal law. The other is diversity jurisdiction which, as Wikipedia notes, “is a form of subject-matter jurisdiction . . . in which a United States district court (the trial courts of general jurisdiction in the federal judiciary) [can] hear a civil case because the persons that are parties are ‘diverse’ in citizenship”, i.e., they are citizens of different U.S. states or one or more of them is a non-U.S. citizen.

And that brings us to the facts in Swearingen v. Haas, as set forth in the plaintiff’s (Swearingen’s) Second Amended Complaint (SAC):

Haas . . .. manufactures machine tools which consist of four major product lines: vertical machining centers (VMCs), horizontal machining centers (HMCs), CNC lathes and rotary tables. These machines sell for over $30,000 up to hundreds of thousands of dollars.

Haas advises potential customers to purchase Haas machines from Haas Factory Outlets around the United States, including the Haas Factory Outlet located in Anaheim, California, which is a division of defendant Machining Time Savers, Inc. (`MTS’). Haas recommends that potential customers finance their purchase through various entities, including defendants HAI Capital (`HAI’) and CNC Associates, Inc (`CNC’). . . .

All Haas machines are manufactured to trigger a `lock out’ alarm (displayed as an error code of `144’) after 800 hours of logged use. If a Haas distributor does not provide the machine operator with an access code within the defined time period, the machine shuts down and will not operate. Only if a customer is completely up to date on all payments and in compliance with all terms in the agreement(s) will Haas allow its distributors to provide the customer with an access code that will permit another 800 hours of use. If a customer is not up to date on payments or not in compliance with applicable terms, the Haas distributor will not provide an access code. . . .

Plaintiff purchased his first Haas machine from MTS in 1998. The manual . . . provided:

This machine is equipped with an electronically-recorded serial number that cannot be altered. This is done in case of theft and to track machines when sold to other owners. After approximately 800 hours of use, the machine will automatically shut down if it has not been unlocked by Haas Automation. To unlock the machine, we must have the above registration with the serial number and the authorization from your dealer. . . .

Plaintiff believed the . . . lock-out mechanism was for his own protection and benefit. When Plaintiff got the error message on this first machine, Plaintiff called MTS and received the code that unlocked the machine for another 800 hours. Plaintiff called MTS eight or nine more times to obtain access codes. . . .

In 2000, Plaintiff bought a second Haas machine. Again, Plaintiff continued to get the 800 hour error code but was always provided with the access code and was never told that the code was being used for collection purposes.

In 2007, Plaintiff bought a third Haas machine. . . . [which he] financed through CNC. In April 2009, Plaintiff fell behind in his payments. He was advised for the first time that if he did not bring his account current, he would `be denied further requests for a time code for the Haas equipment.’ . . . Plaintiff was able to bring his account current, however, `during this time, his machine was shut down twice over the weekend, causing production to stop until Monday and causing delay in satisfying contracts.’

Swearingen v. Haas, supra. Swearingen’s second amended complaint asserted two claims against the defendants, one of which arose under California’s Comprehensive Computer Data Access and Fraud Act, codified as California Penal Code § 502. In this opinion, the federal judge to whom the case is assigned is ruling on the defendants’ Rule 12(b)(6) motion to dismiss this claim as legally flawed. Swearingen v. Haas, supra.

The judge began his ruling on the motion by noting that Swearingen claimed that the defendants’ “use of the lock-out code without disclosure or consent constitutes a violation of” California Penal Code § 502”, “specifically subsections (c)(1) and (c)(5), which make it a crime to do either of the following:

(1) Knowingly access[] and without permission alter[], damage[], . . . or otherwise use[] any data, computer, computer system, or computer network . . . to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data. . . . .

(5) Knowingly and without permission disrupt[s] or cause[s] the disruption of computer services or den[y] or cause[] the denial of computer services to an authorized user of a computer, computer system, or computer network.

California Penal Code § 502. While § 502 is fundamentally a criminal statute, it also creates a civil cause of action that lets one injured by a violation of § 502(c) “bring a civil action against the violator for compensatory damages and injunctive relief”. California Penal Code § 502(e)(1). Swearingen’s theory, then, is that it was injured by a violation of one of these subsections of § 502 which was carried out or caused by the defendants and which therefore entitled it to recover damages for what it had lost.

The opinion doesn’t explain the substance of the motion to dismiss this claim, but I think we can gather what it said from what this court said when it granted the motion:

[T]he facts alleged by Plaintiff do . . . . establish that any of the Defendants `accessed’ the computer in Plaintiff's machine. `Access’ is defined as `to gain entry to, instruct, or communicate with the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.’ Cal. Penal Code § 502(b)(1). Because the lock-out mechanism was . . . programmed into the machine at the time it was manufactured, Defendants did not have to `access’ the machine's computer to cause the machine to shut down after 800 hours.

With respect to subsection (c)(5), Plaintiff fails to state a claim because he does not allege Defendants refused to provide him the access code because he was behind in payments, resulting in his machine shutting down. Plaintiff knew he would need to obtain an access code to unlock the machine after approximately 800 hours of use. What he allegedly did not know was that Defendants might refuse him the code if he was behind in payments. If Defendants actually refused to give him the code because he was behind in payments, any resulting disruption in service would arguably be `without permission.’ In contrast, if Plaintiff's machine became locked after 800 hours of use and Plaintiff was given the code upon requesting it, any period of inoperation before the access code was obtained would not constitute an impermissible disruption of service. . . .

Plaintiff's allegations . . . do not make it clear whether he was ever denied the code because he was behind in payments. It seems any disruption in operations was due to Plaintiff not seeking the code before the weekend. . . [T]he SAC explains, `If the warning goes off during a long weekend, the machine will shut down and the owner will be unable to get in touch with anyone to provide the unlock code. This would result in no production for that entire weekend.’ A weekend shut-down under these circumstances would be an inconvenience . . . but would not be the result of Defendants impermissibly withholding the code to compel payments.

Swearingen v. Haas, supra. The judge also noted that Swearingen implicitly conceded that the defendants “never refused to give him the code, arguing, `[I]t is the entire racket that is being challenged – whether or not the code is ever withheld. . . . Every time a 144 lockout occurs, it is caused by this unlawful motivation intended to circumvent the . . . legal collections system.’” Swearingen v. Haas, supra. The judge therefore granted the motion to dismiss the claim because it found Swearingen knew that the machine would

lock after 800 hours of operation, requiring an access code to unlock it. Unless Defendants refused to give Plaintiff the code . . . to compel payments . . . any disruption in operations was not `without permission’ and did not violate” California Penal Code § 502(c).

Swearingen v. Haas, supra.

I found the “access” and “disrupt” issues interesting, given the context in which they arise. I did a little research and couldn’t find any similar cases, at least not cases that generated reported opinions.

Courtroom Tweets?

I did a post earlier this year on how courts are trying to discourage jurors from using the Internet (including Twitter) during trials. As I explained, the concern here is that jurors will use these resources to conduct their own investigations into issues involved in a trial, which violates the premise that a jury should only decide a case based on evidence that was properly admitted during the trial.

This post is about a different use – or proposed use – of Twitter. The proposal came up in connection with the then-upcoming trial in U.S. v. Shelnutt, U.S. District Court for the Middle District of Georgia (Case No. 4:09-CR-14). As this news story explains, criminal defense attorney J. Mark Shelnutt was charged with conspiring to launder drug money and with 31 counts of money laundering. His trial began in early November of this year.

Prior to trial, a reporter for the

Columbus Ledger-Enquirer newspaper . . . requested that he be allowed to use his handheld electronic device ( e.g., a BlackBerry or cellular telephone) during the trial of the above-captioned criminal case to send electronic messages describing the court proceedings directly from the courtroom to his newspaper's `Twitter’ website. The messages, called `tweets,’ would then be available to any member of the general public who accessed the newspaper's Twitter website.

U.S. v. Shelnutt, 2009 WL 3681827 (U.S. District Court for the Middle District of Georgia 2009). According to this opinion, Shelnutt objected to the request but the prosecution took “no position on the issue, leaving it to the Court’s discretion.” U.S. v. Shelnutt, supra.

The federal district judge to whom the case was assigned denied the request because he found that “Rule 53 of the Federal Rules of Criminal Procedure prohibits `tweeting’ from the Courtroom and that Rule 53 does not unconstitutionally restrict the freedom of the Press under the First Amendment”. U.S. v. Shelnutt, supra.

Since this is presumably the first case in which this issue has arisen (it’s the only one I can find), the judge didn’t literally mean that Rule 53 prohibits sending tweets while a court is in session. Instead, the judge found that tweeting falls within the more general prohibitions contained in Rule 53.

Here is what Rule 53 of the Federal Rules of Criminal Procedure says:

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

The rule dates back to 1944, but has been amended on several occasions. According to one law review article, it has its origins in events that occurred in the 1930s:

[H]igh profile nineteenth-century court proceedings were `. . . conducted in carnival-like atmospheres, attended by thousands of spectators, and received saturation press coverage.’ These trials were the subject of `mass interest and entertainment,’ thereby raising `concern for the rights of defendants. . . . [C]riticism of the sensational and highly disruptive media coverage surrounding the 1935 trial of Bruno Hauptmann, the alleged kidnapper and murderer of the infant son of Charles Lindbergh, precipitated the nationwide regulation of court reporting and near ban of photographic trial coverage. Some accounts of the proceedings asserted that over 830 individuals affiliated with various media organizations were present at the courthouse to cover the trial, resulting in frequent disruptions at the trial.

Henry F. Fradella & Brandon Burke, From the Legal Literature, 43 Criminal Law Bulletin (2007) (notes omitted). The abuses of the Lindbergh trial prompted the American Bar Association to appoint a Special Committee on Publicity in Criminal Trials at its 1935 convention. Fradella & Burke, supra. The committee, which consisted of 12 reporters and 5 lawyers, reported back to the ABA at its 1937 convention. Daniel Stepniak, A Comparative Analysis of First Amendment Rights and the Televising of Court Proceedings, 40 Idaho Law Review 315 (2004).

“While the Committee's recommendations revealed a reluctance to impose a total prohibition on cameras, the Committee appeared to ultimately concede that in its then current state, recording equipment tended to distract trial participants from their primary task.” Stepniak, supra. As a result, the convention adopted Canon 35 of the ABA Code of Judicial Ethics, which provided as follows:

`Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the minds of the public and should not be permitted.’

Stepniak, supra. According to both sources, the original version of Rule 53 was adopted to implement the provisions of Canon 35 in federal court proceedings.

And that brings us back to Shelnutt and to Twitter. The judge in the Shelnutt case found that the

term `broadcasting’ in rule 53 includes sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing. Although `broadcasting’ is typically associated with the dissemination of information via television or radio, its plain meaning is broader than that. The definition of `broadcast’ includes `“casting or scattering in all directions”’ and `“the act of making widely known.”’ Webster's Third New International Dictionary (Unabridged) 280 (1993). It cannot be reasonably disputed that `twittering’ . . . would result in casting to the general public and thus making widely known the trial proceedings. Moreover, it appears clear that the drafters of Rule 53 intended to extend the Rule's reach beyond the transmission of trial proceedings via television and radio.

Prior to . . . 2002 . . . the Rule . . . prohibited the `taking of photographs’ and `radio broadcasting.’ Fed.R.Crim.P. 53 (1946) (amended 2002) (emphasis added). The 2002 Amendments eliminated the modifier `radio’. . . . [A]lthough although the Advisory Committee's notes state that the Committee did not consider the change to be substantive, the . . . Committee made the change with the intention that additional types of broadcasting would be covered by the Rule. See Fed.R.Crim.P. 53 advisory committee's note (`Given modern technology capabilities, the Committee believed that a more generalized reference to ‘broadcasting” is appropriate.’)

Based on the foregoing, the Court finds that the contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public, falls within the definition of `broadcasting’ as used in Rule 53. Therefore, this type of broadcasting is prohibited under Rule 53, unless the application of Rule 53 is unconstitutional because it unduly restricts the freedom of the press under the First Amendment.

U.S. v. Shelnutt, supra. I’m not going to get into the First Amendment issue for two reasons: One is space; I don’t have enough to do that issue justice in this post. The other reason is that I can see a good argument, given Supreme Court precedent in this area, that there is not a First Amendment problem (which doesn’t mean, maybe, that there shouldn’t be . . . but that’s another post).

What I want to focus on is this court’s analysis of why Rule 53 bars tweeting during a trial. From the analysis in the law review articles cited above, I gather that the real purpose of Canon 35 and Rule 53 is to prevent media from disrupting court proceedings. Stepniak, for example, says “as many as 141 newspaper reporters and photographers, 125 telegraph operators, and 40 messengers” were simultaneously present “in the courtroom” during the Hauptmann trial. Stepniak, supra. The judge in that trial seems to have imposed some restrictions on taking photographs and recording newsreel images during the proceedings, but some of the media seem to have violated those restrictions. Stepniak, supra.

The underlying concern, then, is that broadcasting (in particular) is barred not because it allows information about the proceedings to be “widely and instantaneously accessible to the general public,” but because the practical aspects of implementing a radio or TV broadcast threaten to disrupt the proceedings and/or distract the jurors. A blanket ban on broadcasting may have been the best (or only) way to address that concern in the 1930’s and even in the 1950s, but the increased sophistication of modern technology no longer justifies equating broadcasting with disruption. As the Fradella & Burke article notes, 47 states currently allow at least some TV access to court proceedings. And in 1981, the U.S. Supreme Court found that just as the risk of “juror prejudice . . . does not justify an absolute ban on news coverage of trials by the printed media”, the risk of “such prejudice does not warrant an absolute constitutional ban on all broadcast coverage” of court proceedings. Chandler v. Florida, 449 U.S. 560 (1981).

I could go on, but I suspect I’ve pretty much made my point. I don’t see why a reporter tweeting during a criminal trial is any more disruptive than letting a reporter take notes by hand or on a laptop during a trial . . . or letting an artist create sketches that will later be broadcast to the public via television.

(Oh, and while it's not relevant to this post, according to this story the jury acquitted Shelnutt on all charges.