|2nd Circuit Rules in Internet Free
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
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
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
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
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
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
1/17. The Federal Communications Commission's (FCC)
Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD)
released its latest
[50 pages in PDF] titled "Telephone Subscribership in the United States". See
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
1/19. The Progress and Freedom Foundation (PFF)
summary [10 pages in PDF] of its policy proposals for 2007. This summary
attaches a hyperlinked collection of recent papers that elaborate on these
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 /
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
The Senate will meet at 1:00 PM. It will resume consideration of
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?"
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.
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
[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,
|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
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
The price to attend ranges from $20 to $35. For more information, call 202-626-3463. See,
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,
[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
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
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
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,
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
symposium web site. Location: 12th floor, Gewirz Student Center, 120 F
|Thursday, January 25
The Majority Leader's
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
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.,
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,
page. Location: 12th floor, Gewirz Student Center, 120 F
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,
extention [2 pages in PDF] (DA 07-38).
|Friday, January 26
The Majority Leader's
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
(Venable). See, ITAA
|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,
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
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
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)
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
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
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
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
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
[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)
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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