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January 22, 2007, Alert No. 1,523.
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2nd Circuit Rules in Internet Free Speech Case

1/19. The U.S. Court of Appeals (2ndCir) issued its opinion [18 pages in PDF] in Zieper v. Metzinger, an internet censorship case involving the First Amendment free speech clause, and government immunity. It affirmed the judgment of the District Court for the government.

Introduction. This cases addresses the recourse that speakers have when government prosecutors and law enforcement agents take actions to stop internet publication of speech that is protected by the First Amendment, but stop short of initiating prosecution, issuing or obtaining orders restraining speech, or physically preventing the speech, such as by seizure of persons, equipment, or files.

The job of prosecutors is to imprison people, seize things, and stop criminal conduct. In the present case, prosecutors did not do any of these things. Moreover, the government insists that notwithstanding their actions, including the use of the grand jury process, and deployment of FBI and local police, there was no implication that they would do any of these things to the plaintiffs. Rather, it asserts that their actions were merely attempts to convince the plaintiffs not to engage in lawful conduct. The government argues that there were no implied threats of coercion. The Court of Appeals opinion does not relate the government's argument regarding why it did not deploy a non-prosecutorial agency for this task, or inform the plaintiffs that there was no threat of prosecution.

On the other hand, while the government's premise is tenuous, the plaintiffs have sued for violation of their free speech rights, notwithstanding the fact that they were able to engage in the internet speech at issue.

In this case, federal prosecutors and the FBI sought, but ultimately failed, to prevent publication of a movie on the internet. The plaintiffs, who made the movie and operated the web site on which it was published, sued for violation of their First Amendment rights. The ACLU represents them.

The District Court disposed of the issues on appeal by summary judgment.

The Court of Appeals held that there are triable issues of fact on the First Amendment claims, so the government is not entitled to summary judgment on those claims.

However, the District Court also granted summary judgment on the government's claim of limited immunity. The Court of Appeals affirmed. It held that governmental actors are shielded from suits for damages unless their actions violate clearly established rights of which an objectively reasonable official would have known. It reasoned that, given the case precedent at the time, the government agents did not violate clearly established rights. But, the Court of Appeals added, this case establishes new precedent that would be considered if a case with the same underlying facts arose in the future.

Appeals Court's Recitation of Facts. Michael Zieper wrote, directed, and produced a short movie titled "Military Takeover of New York City". The Court of Appeals opinion describes this as a fictional portrayal of "plans for a military takeover of Times Square" on New Years Eve. The opinion does not identity why the military would want Times Square, or what it would do with it once it seized it.

Mark Wieger ran a web hosting service named BECamation. Zieper was a customer of BECamation. He published the movie on the internet using space provided by BECamation. The Court of Appeals opinion states that "Wieger rented his internet space from a company called Online Marketing", which in turn leased from GTE Internetworking.

The Federal Bureau of Investigation (FBI) and U.S. Attorneys Office (USAO) took notice of the movie. Joseph Metzinger was an FBI agent assigned to the case. Lisa Korologos was the Assistant U.S. Attorney USA assigned to the case.

The FBI and USAO attempted to terminate continued availability of the movie on the internet. They succeeded, temporarily. The government actions included a grand jury proceeding, a grand jury subpoena for records, visits by FBI and local law enforcement officers to Zieper's home, telephone calls, and requests to Wieger and Zieper that the movie be removed from the internet.

Metzinger and Korologos stated that their job was to stop a riot and that they wanted to get the video offline. They also raised the subject of going to Online Marketing and GTE Internetworking.

Wieger removed the movie from the internet, but later put it back. The military did not take over Times Square. There were no riots. But, this case is still in litigation, seven years later.

District Court. Zieper, Wieger and BECamation filed a complaint in the U.S. District Court (NJ) against the former Attorney General, U.S. Attorney, and FBI Director. They also named Metzinger and Korologos.

In the present appeal, the only remaining defendants are Metzinger and Korologos. The only remaining counts are the allegations that Metziner and Korologos, acting in their individual capacities, violated the plaintiffs' First Amendment rights. Also, the case was transferred to the Southern District of New York.

Metzinger and Korologos moved for summary judgment on the First Amendment claims, and on the theory of qualified immunity. The District Court granted summary judgment to Metzinger and Korologos on basis of qualified immunity. It also held that no reasonable jury could find that Metzinger's contact with Zieper amounted to threats or coercion in violation of the First Amendment, but that there was a triable issue of fact on the issue of coercion as to a conversation with Wieger.

Court of Appeals. The Court of Appeals affirmed the judgment of the District Court. It held that the plaintiffs' claims are barred by the doctrine of qualified immunity. It also held that neither of the defendants are entitled to summary judgment on their First Amendment argument.

The Court of Appeals, quoting from earlier cases, wrote that "First Amendment rights may be violated by the chilling effect of governmental action that falls short of a direct prohibition against speech", and that the First Amendment prohibits government officials from encouraging the suppression of speech in a manner that "can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request".

The Court of Appeals held that "that a rational juror could conclude that the officers' actions and comments could reasonably be interpreted as an attempt to coerce Zieper into removing his film from the internet".

The plaintiffs' nevertheless lose, because the Court of Appeals held that the doctrine of qualified immunity applies. It wrote that this doctrine provides that governmental actors are shielded from suits for damages unless their actions violate clearly established rights of which an objectively reasonable official would have known.

The Court of Appeals continued that "it was clearly lawful for defendants to request that plaintiffs remove from the internet a video which they may have believed posed a danger to the public safety. However, in making this request, the defendants were forced to walk a difficult line: They could lawfully explain why the government was concerned about the video and request its removal, so long as none of their statements or actions might reasonably be interpreted as coercive. In walking this line, much of what the defendants here did was unobjectionable: They were free to contact both plaintiffs, to explain that the government was concerned about the video's effect on the general public, and to request that plaintiffs remove it from the internet. However, as we held above, a reasonable juror could conclude that some of the defendantsí actions here did cross the sometimes fine line between an" attempt to convince and an attempt to coerce. (Footnote omitted.)

"Notwithstanding our conclusion that a reasonable juror could find a First Amendment violation, under our case law, the defendants are entitled to qualified immunity if it would not have been clear to a reasonable officer in their position that their conduct was unlawful." The Court of Appeals reviewed its case precedent, and concluded that "our pre-existing law would not have made apparent to a reasonable officer that defendantsí actions crossed the line".

It wrote that the "defendants here are entitled to qualified immunity because an officer could reasonably believe that" their statements "would be interpreted as simply an explanation of why they were concerned about the video and not a threat of prosecution under the criminal statute."

The Court of Appeals added this statement at the end of its opinion. "Moreover, as a result of our holding that a reasonable juror could conclude that the defendantsí actions violated the First Amendment, officials who are in a similar situation in the future will be on notice that they must be especially careful to make sure that the totality of their actions do not convey a threat even when their words do not."

This case is Michael Zieper, Mark Wieger, and BECamation v. Joseph Metzinger and Lisa Korologos, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 05-5250-cv, an appeal from the U.S. District Court for the Southern District of New York.

Paper Addresses Vulnerability of GPS and other Satellite Systems to PRC Attacks

1/19. The U.S.-China Economic and Security Review Commission released a paper [80 pages in PDF] titled "An Assessment of China's Anti-Satellite and Space Warfare Programs, Policies and Doctrines". The author is Michael Pillsbury.

The paper consists of a review and analysis of "Chinese writings" relevant to satellite and space warfare. It argues that the People's Republic of China has developed satellite shoot down capability, and is developing a range of anti satellite and space warfare technologies.

The paper also addresses some of the commercial consequences of potential actions by the PRC.

For example, the paper quotes at length a Chinese paper on how to take down the GPS system. That Chinese paper states that the low earth orbit satellites are easy targets, that the ground stations around the world are vulnerable to attacks, and that the satellites' signals are subject to RF interference.

Pillsbury comments that "These recommendations are most surprising because the three authors show no concern about the vast economic catastrophe that destroying the GPS system would bring to the world. Rather, GPS appears to be merely a US military system."

Pillsbury's paper concludes that PRC attacks on satellites "could have a catastrophic effect not only on US military forces, but of the US civilian economy".

FCC Releases Latest Phone Subscribership Data

1/17. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released its latest report [50 pages in PDF] titled "Telephone Subscribership in the United States". See also, FCC release [PDF].

The report states that in July of 2006 94.6% of households had phone service. This is up from 92.8% in March. This is huge increase over just four months.

Moreover, FCC data shows two huge increases, and two huge decreases, in four of its last five reports. The four largest changes in several decades occurred in this two year time frame. This suggests that there may be increased inaccuracy in FCC data collection.

The FCC changed the wording of its question for the November 2004 survey, just before the volatility began. The question was previously "Is there a telephone in this house/apartment?". It has since been "Does this house, apartment, or mobile home have telephone service from which you can both make and receive calls? Please include cell phones, regular phones, and any other type of telephone."

Penetration peaked at 95.5% in March of 2002, and again in March of 2003.

See also, recent TLJ coverage:

PFF Releases 2007 Policy Agenda

1/19. The Progress and Freedom Foundation (PFF) released a summary [10 pages in PDF] of its policy proposals for 2007. This summary attaches a hyperlinked collection of recent papers that elaborate on these proposals.

The PFF opposes network neutrality mandates, and argues that "communications should be treated like other industries with more focus on antitrust enforcement instead of preemptive regulations".

The PFF argues that the "Congress should resist the urge to pass laws that interfere with markets for copyrighted goods. To create new content distribution business models, producers often use digital rights management technology to package or mark digital goods to exclude free riders, just as locks on doors are the "front line" in keeping out burglars."

With respect to patent law reform, the PFF states that "the system already works well for a significant number of companies", so the first rule should be "do no harm".

The PFF advocates less regulation of media ownership and content. It states that "With new technologies and outlets radically reshaping the communications and mass media landscape, traditional regulatory assumptions have been thrown into question and old rules have become counter-productive." It also advocates "greater First Amendment parity among modern media providers by leveling the playing field in the direction of greater freedom for all operators / platforms".

It argues that data security and privacy proposals should be subjected to "careful benefit-cost analysis, including full examination of consumer benefits from services and technologies affected by these proposals".

It opposes legislation that would impose "Avoid open-ended, intrusive data retention mandates" on providers of internet services.

The PFF argues that the Internet Corporation for Assigned Names and Numbers (ICANN) "should free up entry and let the market determine the number of top-level domains (TLDs)", and that "the U.S. should continue to resist moving to a multilateral governance approach."

The PFF wants lower taxes on both wireline and wireless services. It adds that "if Streamlined Sales and Use Tax Agreement (SSUTA) legislation is enacted, participation by the States should be voluntary. Mandating SSUTA compliance would seriously erode the benefits of tax competition that are an important part of our federal system."

Washington Tech Calendar
New items are highlighted in red.
Monday, January 22

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. It will consider several non-technology related items under suspension of the rules. See, Majority Leader's weekly calendar [PDF].

The Senate will meet at 1:00 PM. It will resume consideration of HR 2, the "Fair Minimum Wage Act of 2007".

9:00 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a pair of panel discussions titled "Constitutional Change in Taiwan: Provocation or Democratic Consolidation?" See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

9:30 AM. The Center for Democracy and Technology (CDT) will host a news conference to release its legislative recommendations regarding surveillance and national security, consumer privacy, copyright, free expression on the internet, and other issues. Breakfast and coffee will be provided. RSVP to David McGuire at dmcguire at cdt dot org or 202-637-9800 x106. The call in number is 800-377-8846. The passcode is 38076715#. Location: CDT, 11th floor, 1634 I St., NW.

EXTENDED TO APRIL 23. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Effects of Communications Towers on Migratory Birds". This NPRM [40 pages in PDF] is FCC 06-164 in WT Docket No. 03-187. The FCC adopted this NPRM on November 3, 2006. It released it on November 17, 2006. See, notice of extension [PDF].

Tuesday, January 23

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. See, Majority Leader's weekly calendar [PDF].

The House and Senate will meet in joint session at 8:40 PM for an event titled "State of the Union Address".

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Blogging for Lawyers: How Practicing Lawyers Are Using Blogs to Find Clients, Fortune and Fame and How You Can Too". The speakers will include Amy Howe (www.scotusblog.com), Marc Mayerson (www.insurancescrawl.com), Scott Hodes (thefoiablog.typepad.com), and Carolyn Elefant (www.legalblogwatch.typepad.com). The price to attend ranges from $20 to $35. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch and fee based continuing legal education (CLE) seminar titled "Federal Computer Crimes". The speaker will be Eric Wenger, a Trial Attorney in the Department of Justice's (DOJ) Criminal Division's Computer Crime and Intellectual Property Section (CCIPS). The price to attend ranges from $25 to $60. The deadline for registrations and cancellations is 5:00 PM on January 19. See, registration form [PDF]. Location: Wiley Rein & Fielding, 1776 K Street, NW, Main Conference Center.

Wednesday, January 24

The House will meet at 10:00 AM for legislative business. See, Majority Leader's weekly calendar [PDF].

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold its organizational meeting for the 110th Congress. See, notice. Location: Room 342, Dirksen Building.

10:00 - 11:00 AM. The U.S. Chamber of Commerce (USCC) will host a news briefing regarding its "No Trade in Fakes Supply Chain Tool Kit: Protecting Businesses, Consumers, and Brand Integrity". The speakers will describe ways that businesses can protect their supply chains and consumers from counterfeiters and pirates. The speakers will be Caroline Joiner (Executive Director of the USCC's Global Anti-Counterfeiting and Piracy Initiative), Brad Huther (USCC), Stephen Jacobs (Deputy Assistant Secretary for Trade Agreements and Compliance at the Department of Commerce's International Trade Administration), and Aaron Graham (Purdue Pharma). The USCC states that "Credentialed members of the media are invited to attend". Location: USCC, 1615 H St., NW.

10:30 AM. The House Education & Labor Committee (previously the House Education & Workfoce Committee) will hold its organizational meeting for the 110th Congress. Location: Room 2175, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Global Trademark Portfolio Part I: Clearance and Registration". The speakers will include Thomas Brooke (Holland & Knight), Jennifer Elgin (Wiley Rein & Fielding), and Leigh Ann Lindquist (Sughrue Mion). The price to attend ranges from $15 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

Day one of a two day symposium hosted by the Georgetown University law school titled "Global Sourcing and the Global Lawyer". See, symposium web site. Location: 12th floor, Gewirz Student Center, 120 F St., NW.

Thursday, January 25

The Majority Leader's weekly calendar [PDF] states that "No votes are expected in the House".

8:00 AM - 4:30 PM. The Federal Trade Commission (FTC) will hold a workshop on online marketing of negative options. See, FTC release and notice [PDF] to be published in the Federal Register. Location: FTC satellite building conference center, 601 New Jersey Ave., NW.

9:30 AM. The Senate Banking Committee will hold a hearing titled "Examining the Billing, Marketing, and Disclosure Practices of the Credit Card Industry, and Their Impact on Consumers". See, notice. Location: Room 538, Dirksen Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument, en banc, in Boehner v. McDermott. See also, story titled "Court of Appeals Holds that Rep. McDermott Violated Wiretap Act" in TLJ Daily E-Mail Alert No. 1,339, March 30, 2006. Location: 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch. The topic will be "The 2007 Regulatory Landscape; Thoughts From CMRS Carrier Washington Office Heads". The speakers will include Tom Sugrue (T-Mobile), John Scott (Verizon Wireless), and Chris Guttman-McCabe (CTIA - The Wireless Association). Location: 10th floor, Latham & Watkins, 555 11th St.,  NW.

1:30 - 2:45 PM. The Telecommunications Industry Association (TIA) will host a news briefing via teleconference to announce the findings of the "TIA's 2007 Telecommunications Market Review and Forecast". The speakers will be Grant Seiffert (head of the TIA) and Arthur Gruen (principal author).  To obtain call-in information contact Terry Lane at 703-907-7723 or tlane at tiaonline dot org, or Neil Gaffney at 703-907-7721 or ngaffney at tiaonline dot org. The TIA states that this event "is available to credentialed media only".

Day two of a two day symposium hosted by the Georgetown University law school titled "Global Sourcing and the Global Lawyer". From 8:30 - 10:00 AM there will be a panel discussion titled "Data Privacy/Protection and Global Sourcing". From 10:15 - 11:45 AM there will be a panel discussion titled "Technology Transfers, Intellectual Property and Global Sourcing". See, symposium web site. The event is free and open to the public, but registration is requires. See, registration page. Location: 12th floor, Gewirz Student Center, 120 F St., NW.

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its 7th Further Notice of Proposed Rulemaking in its proceeding titled "Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service". This item proposes a new DTV Table of Allotments providing all eligible stations with channels for DTV operations after the DTV transition. The FCC adopted this item on October 10, 2006, and released it on October 20, 2006. See, story titled "FCC Adopts NPRM Proposing New DTV Table of Allotments" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. This item is FCC 06-150 in MB Docket No. 87-268. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Pages 66591-66631. See, notice of extention [2 pages in PDF] (DA 07-38).

Friday, January 26

The Majority Leader's weekly calendar [PDF] states that "No votes are expected in the House".

2:00 - 3:00 PM. The Information Technology Association of America (ITAA) will host a webcast event titled "ITAA Tech Law: The new Federal e-Discovery Rules. Are You Ready? Privacy and Data Protection Series with Venable LLP". The speaker will be Damon Wright (Venable). See, ITAA notice.

Monday, January 29

9:00 AM - 3:30 PM. The National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee will hold a partly closed meeting. See, notice in the Federal Register, January 16, 2007, Vol. 72, No. 9, at Page 1705. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

Deadline to submit comments to the Federal Bureau of Investigation's (FBI) Electronic Surveillance Technology Section (ESTS) regarding its Communications Assistance for Law Enforcement Act of 1994 (CALEA) related cost recovery process information collection activities. See, notice in the Federal Register, November 29, 2006, Vol. 71, No. 229, at Pages 69146-69147.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its review of regulations, pursuant to the Regulatory Flexibility Act of 1980, of FCC regulations that become ten years old in 2006, to determine whether such regulations should be changed, amended, or rescinded. See, notice in the Federal Register, November 29, 2006, Vol. 71, No. 229, at Pages 69085-69094. This notice includes a list of relevant regulations.

People and Appointments

1/19. Warren Maruyama was named to be the next General Counsel at the Office of the U.S. Trade Representative (OUSTR). He will replace James Mendenhall. Maruyama is currently an attorney in the Washington DC office of the law firm of Hogan & Hartson. See, OUSTR release.

1/19. Mark Prater was named Deputy Staff Director for the Republican staff of the Senate Finance Committee (SFC). He replaces Ted Totman. Prater will also continue as Chief Tax Counsel. He has worked for the SFC since1990. Stephen Schaefer was named Chief International Trade Counsel on the Republican staff. Claudia Bridgeford was named International Trade Policy Advisor. See, Sen. Charles Grassley's (R-IA) release [PDF].

1/19. James Baker, Counsel for Intelligence Policy in the Department of Justice's (DOJ) National Security Division (NSD), will take a leave of absence to teach a course on national security investigations and litigation at Harvard University Law School, and to be a Resident Fellow at Harvard's Kennedy School of Government. He has worked on Foreign Intelligence Surveillance Act (FISA) matters. Margaret Nolen will be the acting Counsel for Intelligence Policy. Kenneth Wainstein remains the Assistant Attorney General in charge of the NSD. See, DOJ release.

1/19. Michael Heimbach was named Special Agent in Charge of the Federal Bureau of Investigation's (FBI) Washington Field Office (WFO) Counterterrorism Division. See, FBI release.

1/4. Terry Lane, James Maday, and Michael Nunes joined the staff of the Telecommunications Industry Association (TIA). Lane, who will handle communications, was previously Deputy Communications Director for the House Commerce Committee. Before that, he was a reporter for Communications Daily. Maday previously worked for former Rep. Mike Oxley (R-OH). Nunes previously worked for Commissioner Jennifer Hillman of the U.S. International Trade Commission (USITC). See, TIA release. Also, effective January 1, 2007, Grant Sieffert replaced Matt Flanagan as President of the TIA. See, September 5, 2006, TIA release.

More News

1/19. The Federal Communications Commission (FCC) published in its web site its Form 477 [MS Excel] and its document [17 pages in PDF] titled "Instructions for Local Telephone Competition and Broadband Reporting Form (FCC Form 477)" for the filing due by March 1, 2007. The FCC's Public Notice [PDF] (DA 07-117) states that "All facilities-based providers of wired or wireless broadband connections to end user locations, all local exchange carriers, and all non-reseller commercial mobile radio service (CMRS) providers offering mobile telephony are required to file Form 477 twice each year."

1/19. The Federal Communications Commission's (FCC) International Bureau (IB) stated in a release [PDF] that it released its annual year end circuit status report for U.S. international facilities based common carriers. The FCC further stated that this report is available on the FCC's web page titled "Circuit Status Report".

1/18. Federal Reserve Board (FRB) Governor Susan Bies gave a speech in Tucson, Arizona, titled "Economic Outlook and Developments in Mortgage Markets". She stated that "the demand for information technology equipment is likely to be well maintained, in part because of the recent introduction of a new generation of microprocessing chips and more-efficient large servers."

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