This Week in Law 265 (Transcript)
Denise Howell: Hi folks, Denise Howell, here. Evan Brown and I are going to bring you a great show next on This Week in Law. We’ve had lots of action from the Supreme Court this week with Riley and Aereo and McCullen. We’ve got free speech and First Amendment expert Sonja West from University of Georgia school of law joining us; also Internet lawyer Bennet Kelly is coming in too. They are going to talk about all the good speech and the Supreme Court stuff, privacy stuff, and social web stuff. How on earth are you going to find a parking space in San Francisco? We’re going to tell you next on This Week in Law.
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This is TWiL: This Week in Law, with Denise Howell and Evan Brown, episode 265; recorded June 27, 2014
Monkeys, Ducks, and Unicorns
Denise: (bagandbaggage.com - @dhowell) Hi folks, is Denise Howell and you’re joining us for This Week in Law and you are so glad you did. This has been anything but a slow news week on the law, and technology front. Law affecting technology, law affected by technology, lots of good stuff coming out of the Supreme Courts. Some not so great’s of coming out of the Supreme Court, depending on your perspective on the decisions this week really definitely interesting to try and unpack and tried to talk about and forecast the impact of what this Supreme Court has done this week. In its cases on cell phones, on Aereo, on speech, lots of stuff going on, they are. And fortunately as usual, we have a wonderfully erudite and educated panel to help you understand what’s going on in this cutting-edge area of the law. Joining us right now from the University of Georgia law school is Sonja West. Hello Sonja.
Sonja West: (www.law.uga.edu - @sonjarwest). Hi.
Denise: Hi, it’s great to meet you.
Sonja: I’m excited to be here, like you said a great week. I love it when Scalia’s opinions come down.
Denise: Yes, it’s always fun this time of year. Also joining us, returning to our show. Thank you for coming back Bennet Kelly.
Bennet Kelly: (internetlawcenter.net - @InternetLawCent) Great to be here.
Denise: From the Internet Law Center and the Cyber Report Show. Bennet I know you do the Cyber Report is there another media outlet that you do that. I’m spacing on right now?
Bennet: It’s on web master radio. Webmaster radio.FM but recently we have been picked up by Iheart radio.
Denise: There we go. Wonderful. Another great show about the kinds of issues that we talk about here on our show every week with my cohost Evan Brown, whose back this week. YA, hello Evan. It’s good to see you.
Evan Brown: (infolawgroup.com - @Internetcases) Hey Denise, it’s good to see you. It’s great to be back and Bennet wonderful to see you and talk to you again. You were so gracious to have me on your show at the end of last year, at the end of 2013. So, I really enjoyed that. So it’s good to talk to you again. Sonja is very good to meet you. It should be a really good conversation today.
Denise: Yes, and let’s start out with the Aereo case, as I was saying before we started before. I just need to get this one out of my system. Early on the show, so. Let’s do Aereo
(Web advertisement: this week in law: entertainment law: music playing)
Denise: Right, so it has been an very long wait and decisions winding through various courts involving various parties, before we got a definitive and controlling decision on whether organizing a business around pulling down live over the air broadcast TV with tiny dime size antennas, then streaming it out to your customers would be legal under US copyright law. And what the Supreme Court found this week is that it is not. The Supreme Court found to critical points in its rather lengthy, about 35, page PDF opinion, that’s including the syllabus.
(Printed copy of October term, 2013, Supreme Court of United States syllabus. American broadcasting COS.Inc., et al, v. Aereo, Inc. Fea. Bamboom Labs, Inc.)
Denise: and the descendent. It’s found two critical points. One, that there was actually a performance of the copyrighted works going on, and that was the mostly technological discussion of the show, of the opinion. The opinion is quite a show, I recommend reading through it. If you are interested in this issue at all. And then the second critical point is that the Supreme Court made was that it was a public performance. And if it is an unlicensed public performance of the work under copyright law. That’s infringement. So, this means that Aereo pretty much is done.
(Webpage: techdirt: Supreme Court uses the bizarre ‘it’s like a cable duck’ test to outlaw Aereo)
Denise: I was speculating, while reading through the opinion whether the DVR function might survive and we can talk about that a bit. Other people were speculating about that too. But I think on balance, it’s probably done as are other technologies might have tried to deliver broadcast television in this way. So, there in a nutshell is what happened. And let’s try and get to the why and what it means. Bennet we will start with you, what do you think of the decision and the courts to key conclusions about performance and public performance?
Bennet: I actually disagreed with their conclusion that it was public performance and mainly for the reasons that I thought Scalia spelled out well in his dissent. There is a big difference between the present day they drew upon where someone is downloading a whole body of work. Where here they are only streaming video as directed by the consumer. And so I thought lumping them together, it just wasn’t appropriate, as I mentioned to you in the note. Basically, it walks like unicorn it talks like the unicorn so we will call it a duck. Ultimately, I didn’t think the court really spelled out as compelling as a state did as to why the ruling should have gone that it wasn’t a public performance.
(Webpage: techdirt: Supreme Court uses the bizarre ‘looks like a cable duck’ test to outlaw Aereo)
Denise: Evan, as we have been watching this case unfold over the years and wind its way through the courts, you have expressed a sentiment in the past that, using the dime sized antenna as your technological means of getting around copyright law might not set well with the court. And in fact, the court justice Breyer writing for the court’s majority, did seem to just want to sweep under the rug what was going on behind the scenes as he called it. That wasn’t really important, you could do whatever you want behind the scenes, but if it’s functioning in a way that looks like a cable system, as the court decided this was then we’re going to treat you like a cable system.
(Webpage: Aereo advertisement: Aereo. Watch live TV online. Save shows or later. No cable required. Record & stream live TV online with Aereo cloud DVR: coming soon to 19 more cities! Preregister now. Watch live TV online, access the most popular channels and more)
Denise: and you’re going to have to pay the same sorts of fees that cable systems do. Do you think the court decided the technological and around that this was a technological end around of the law and that shouldn’t be tolerated?
Evan: Probably, I think that’s what happened here. I mean, we see from the opinion, a good indication that it was, as Justice Scalia in the dissent characterized it: A results week driven ruling. If the justices decided how they wanted to rule beforehand and then look at what the text of the copyright act says and fashions a way to get to that Rick and resolves that was determined beforehand. And unfortunately. Courts do that from time to time, and it doesn’t always end up with the best decision. At a fundamental level, like many people who are watching this show
(Webpage: Aereo advertisement: Aereo. Watch live TV online. Save shows or later. No cable required. Record & stream live TV online with Aereo cloud DVR: coming soon to 19 more cities! Preregister now. Watch live TV online, access the most popular channels and more. Pick up a device… Aereo is expanding)
Evan: and listen to the show. I’m really disappointed that the court ended up where it did. At the same time, I’m not surprised at all. Because look at the ridiculous situation, that the court is in having to answer this question. It has before it an extremely innovative technology that is backed by billions of dollars of capital funding, parties here in the area really wanting to do something new and innovative and make money from it, sure. And on the other hand, the court has in front of it this rickety old structure, namely the copyright act, which the language that we are talking about here. The definition about what it means to perform the work publicly and more specifically what it means to transmit whether or not, under what circumstance this performance is public. That language was fashioned in response to earlier court opinions that were dispensing with technology from the late 1960s and early 1970s. So right there, shows what a ridiculous practical situation, the court is in. So, it should come as no surprise if the court can determine what kind of results it wants to get
(Supreme Court of United States syllabus; American broadcasting COS., Inc., et al., v. Aereo, Inc., FKA Bamboon Labs, Inc.,)
Evan: to look at it then and sees well Aereo what it’s doing. It looks like a cable company. It looks like a CAT, a community access television provider. And we look at the regulatory intent of Congress when it was in acting the 1976 act, we are just going to say that Congress intended to cover everything that is anything with closely resembling cable companies and other situated parties. It’s just the final phenomena of what Aereo is doing looks like that, we would just go ahead and sweep that through. And then the language that the court has with the transmit clause, the public performance definition and the transmit clause is so skewed enough and so inapplicable that they can fashion an argument to fit it in. So, too, just put a summary of what I have said here. It’s disappointing, but I really don’t think we should be all that surprised if we can take as a given that the court very much wanted to see this as a cable company from the beginning.
Denise: Yeah, that came through pretty loud and clear in the oral argument on the case. Sonja what’s your take overall?
Sonja: Well, I think what you see here is in addition to what everyone else just said is some issues about the court trying to deal with this new technology through this method of analogy. We also see that in the cell phone case which we will talk about in the little better. But only have justice Breyer writing for the majority saying this sure looks like a cable company, ‘You pick the show, you watch it seems kind of like just watching cable’ and then you have Justice Scalia, in his dissent come in and say, ‘no, it’s more like a copy shop, which I don’t think those really exist anymore, I don’t think Kinko’s is even around. As you were saying, so, it kicks it even further. It’s a copy shop in the library
(Webpage: techdirt: Supreme Court Uses the Bizarre ’Looks like a Cable Duck’ Test to Outlaw Aereo)
Sonja: or with the library card. It’s clearly just a very problematic way to decide these kinds of cases, and it gets us into this uncomfortable situation of picking substance over form instead of actually having the court trying to interpret what statute says. And also even taking into account congressional intent, to the extent that the court can do and something that is appropriate that we are getting away from this congressional intent of the copyright law that is meant to protect creators by having these very strong protections for distributors of these creations. And, so, are we really even furthering this congressional intent? And also, I find it just interesting how we come to look at broadcasting. Broadcasting, of course, is this content that is free, we have a history of broadcasting law, where we give licenses, and we think that there are duties that come with those licenses, it was just 20 years ago that Congress was passing miscarry laws, telling cable companies that they have to carry the broadcast license because of this fear that they were going to just push out the broadcast stations. And suddenly now someone who uses this mini antenna behind the scenes to get their broadcasting is a thief. And people are looking at it in this very different way. So, I think it is a very problematic decision in a lot of ways. In terms of its copyright, how it interprets copyright statute, but also in terms of just, also their method of analogy. Their method of approach, of interpreting the statutes is just going to hit a lot of roadblocks if this is the way they keep going.
Denise: Yeah, one of the funniest examples to me of that in the opinion; comes in the portion where Justice Breyer is discussing and concluding that this is a performance before he gets to whether it’s a public performance. He’s analogizing both to older technology into cases that have resolved the question under older technologies and it basically says that in the early 70s when these cases were solved, you could select a channel by turning a novel on the television. And so this is just the same kind of thing where you are clicking something on a website, turning a non-, it’s the same, I really did not expect television. No Hans to play a large role in the resolution of this decision. (Laughter) and yet there they are. And yes, Sonja I totally agree with you. This is rather a clumsy way to try and apply the law to what was going on here. And I wonder, your comments make me think Sonia, although the court doesn’t come out and say this, it does come out and say the court made decisions in the 70s that the Congress set aside and that the court, through the ‘76 copyright act and the court now has to abide by its terms, and that’s what it was construing here. I’m wondering if this is basically punting back to Congress and saying ‘look if we are going to have the ability to distribute free over the air broadcast television in a way that’s not a cable company, if we’re going to make some new cable company distinction for new technologies, Congress is going to have to recognize that and decide what to do with that’. And maybe if Congress does that you won’t have to have little tiny dime size antennae to accomplish it. You could do it in a more streamlined and efficient technological way, too. Do you think that that is a conclusion to be drawn from this opinion, Sonja?
Sonja: I mean it’s possible, I’m sure there will be pressure now on Congress to do something. They didn’t say that, sometimes they come out and say that. They say, ‘we are just going to push this back to Congress’, they did not come out and say that, in fact, they did the opposite. They said ‘we’re pretty sure we know what Congress meant and they didn’t mean this. And so we are going to respect what it is a, we’re pretty sure what Congress meant.’ So, they didn’t seem, to me, explicitly to be saying ‘it’s your turn now; you Congress fix this’. They seem to think we are doing the right thing plays on what, how they interpreted the law and what they thought Congress actually did intend. They could have done it the other way and said, ‘based on what we have written here. This is fine. Congress, if you think this isn’t fine, change something to let us know’, but they didn’t do that; either way it seems very definitive to me. The way I read it.
Evan: And that’s how Scalia really comes out looking pretty grand in this. He in the dissent clearly articulates, I think, what a lot of people would have liked to have seen be the majority opinion. He devotes a whole section to his dissent, on this idea of guilt by resemblance, is what he calls it. He finds, it’s the simple, you gotta love Scalia, in his writing, you know, he says, the court’s conclusion boiled down to the following syllogism. One: Congress amended the copyright act to overrule our decision holding that the cable system do not perform when they retransmit over the air broadcasts. So change the idea of what it means to perform. Aereo looks a lot like a cable system. Therefore, Aereo performs. And then he points out how it has three big problems. The first of which, it is built on this very shaky foundation of what that congressional intent was. It says, “It reaches out to decide the case based on a few isolated snippets of legislative history. Which you will see in the majority opinion, it does rely very heavily on what the Congress people, the members of Congress were talking about. This is a part that I love, the court treats those snippets as authoritative evidence of congressional intent, even though they come from a single report issued by a committee whose members make up a small fraction of one of the two houses of Congress. So, there’s a big problem. There. Generally, I thought courts, especially the Supreme Court was supposed to look at the text of the statute first and then go to legislative intent if it is at all possible, but here we seem to see in this opinion that look directly at what Congress intended and took it as gospel that the intent of what was in the mind of Congress, which in itself is a fallacious way to think of this, still exists and should still be given embodiment in 21st century technology. It just really does seem quite odd. And you can see why Justice Scalia would get upset about the way he likes looking at the text of statutes.
Denise: Right, we could spend the whole show on this case. But there were a lot of interesting developments this week. So I want to hit some highlights of the decision really just throw them out there as food for thought and look ahead a bit at what it might mean. We’ve been talking a lot about finding that it is a performance, it also critically found it was a public performance; that part, I have difficulties with the entire opinion, but the public performance part in particular, I think is hard when you look at again, the court was not relying on legislative history here, as Evan was mentioning. I just pulled up the transmit clause is kind of long, I want to find the part that I am referring to here.
Evan: It comes from the part of the definition, we’ve got three different parts. While you’re finding that. You’ve got to look at three different parts of section 101 of the copyright act. It’s a definition of what it means to perform and under section 106-4: one of the exclusive rights of the copyright owner is to perform in public. So, then there are other definitions about what it means to be public, of that performance. And that’s where the transmit clause comes in.
(Webpage: copyright law. Section 106: exclusive rights in copyrighted works: subject to sections 107 through 122, the owner of copyright under this title had the exclusive rights to do and be authorize any of the following: 1) to reproduce the copyrighted work in copies or phonorecords;
2) to prepare derivative works based on the copyrighted work;
3) to distribute copies or phonorecords of the copyrighted work to self published by sale or other transfer of ownership, or by rental, lease, or lending
4) in the case of literary, musical, dramatic, and choreographic works, pantomimes and motion pictures and other audiovisual works, to perform the copyrighted work publicly
5) in the case of literary, musical, dramatic, and choreographic work, Penta minds and pectoral, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly and
6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
106A-rights of certain authors to attribution and integrity.
(a) Rights of attribution and integrity-subject to section 107, the independent of the exclusive rights provided in section 106, the author of a work of visual art-
(1) shall have the right-
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of a work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which should be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113 (d) shall have the right-
(A) to prevent any intentional distortion, mutilation, or other modification of that work, which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right and)
Denise: Here’s that part: To perform or display a work publicly means to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered or to transmit or otherwise communicate a performance, or display of the work to a place specified by clause 1; that’s what we just discussed. So your living room. Basically. Or to the public by means of any device or process that members of the public capable of receiving the performance or playing receive it in the same place or in separate places and at the same time or at different times. So, the court decided either, that sitting at your home watching TV is somehow a public performance space or that Aereo’s customers comprise the public, and I’m really still unclear. Having read through the decision which of those points. The court is hanging its hat on. But, in either case, I have a hard time considering Aereo’s customers as the public. Bennet can you shed any light there?
Bennet: No, and I think that is the point that Scalia hammered home and how is this different than a DVR performance? I think that’s what the court got it wrong, and keep in mind that Betamax case was a 5 – 4 case, but that was a tough decision to make. They took on the entertainment industries and five Justices decided that this is the way the law is. And technology is going to evolve and we will see what happens. Congress is free to step in, and I think this would’ve been the appropriate thing to do here. It’s unlikely that Aereo is going to get Congress to step in. Now that the motion picture industry and others with special interests, they are going to block whatever they do. The real policy wide and courageous choice would have been to go with the dissent.
Denise: Right, Eric Goldman characteristically has a brilliant summing up, and sort of, here’s what you should be thinking about post over at Forbes. He calls it ‘four unanswered questions from Aereo’s Supreme Court loss.’ Let’s wrap up our discussion by considering his unanswered questions. The first one is
(Webpage: Forbes: Four Unanswered Questions from Aereo’s Supreme Court Loss by Eric Goldman)
Denise: and he says court leaves this unresolved and I wonder if you guys agree; who took the legally significant action: whether it is Aereo or Aereo’s customers? Ever got resolved in this case, and does it matter? So, Evan, what do you think of that one?
Evan: Well, this is where the Aereo decision departs from our ordinary thinking when we think of it in terms of Internet law. As an Internet law issue, because again, the court considered to questions: was there a performance and was that performance public? And in characterizing it as yes, Aereo as the intermediary here, remember.
(Webpage: Aereo advertisement: watch live TV online. Save shows for later. No cable required. Record & stream live TV online with Aereo cloud DVR. Watch live TV online)
Evan: the court held that it did indeed perform the work. And so it could be directly liable for copyright infringement. So, this is different than Betamax and this is different than Grokster inasmuch is those situations you were going after the provider of the device or the service, the platform, as in Grokster, the intermediary for secondary liability. So here we have got Aereo being treated as the intermediary, the provider of the service and the question of liability for direct copyright infringement; it being the one to take the act that constituted infringement of the copyrighted work, owned by the networks and the broadcasters. So, that is one thing that is at the first blush is very shocking about this. And what the part that could if there’s going to be any effect on the industry in the marketplace; it is going to be that question right there. But what this case does is expand the class of providers of services, which could in some senses could be thought of merely as online service providers as defined under the DMCA, for example. They are now at greater risk of infringement for direct copyright; or liability for direct copyright infringement. And appoint that Prof. Goldman makes later on his may be this won’t result in greater liability for those intermediaries, but you can be certain that there is going to be a lot more litigation in this space, just like there was, just like in many more copyright cases. You see, inducement, post Grokster. Aereo wasn’t the one who instituted the action, it didn’t undertake the volitional act, the volitional conduct. This is what I see as the real thrust of Scalia’s dissent. Aereo is just the provider of the services here yet it is being held directly liable because, well, it looks like a cable company.
Denise: Right, and to that point about there being more litigation. This is existing litigation, but the case is already being raised by Fox in its case by Dish involving its Hopper and streaming services; has already run to the ninth circuit say that in light of this decision; Fox, I’m sorry, Dish’s streaming is going to be
(Webpage: theguardian: Fox moves to use Aereo ruling against dish streaming services)
Denise: a public performance that violates. It seems like, here. There might be a twist because they have some contractual bars against streaming the works. So, that’s one to watch, but it’s already coming up in people’s litigation where someone is going to say, hey, under this case you have a public performance on your hands. I’ll take the next one from Prof. Goldman’s article; his the DVR as a service legal either the aspect of Aereo’s business or say a DVR under the Cablevision case, the Cartoon Network versus CSC case, as it’s captioned, it like the Betamax case, which has a different caption Sony versus Universal it can confuse people. It confused me, when I was searching through the opinion, I said wait. Where is Cablevision, it had to of come up. I wanted to go right to that discussion. And I couldn’t find it
(Webpage: Forbes: 2) is DVR as a service legal?)
Denise: because, of course, it’s not called the Cablevision case when the court cites it.
Evan: I don’t think the majority does cites it anywhere. Actually,
Denise: They do, they cited but they treat it they just bleep right over it. They also make a point at the beginning of the decision to say, let’s see, did I quote this in our little run down. Yeah, ‘it went out of the way to say that the DVR aspect of the business was not before the business, there’s specific language was, the subscriber may instead direct Aereo to stream the program at a later time. They were talking about it plays almost at the real-time. But that part of Aereo service is not before us. So, Careful to keep their hands off the DVR aspect. But I don’t think personally that the DVR aspect could survive this decision. And that’s is what Prof. Goldman’s question was. Cablevision actually contacted him after he published his Forbes post to say that they thought the opinion protects their DVR service. Their press statement says, were gratified with the court’s decision adopted a sensible middle ground, holding that an unlicensed transmission service like Aereo violated the copyright law while protecting consumer friendly cloud-based technology such as RS-DVR; Prof. Goldman goes on to say, I don’t read the own opinion as charitably as they do. And I don’t think I do either. Mike Masnic published something that hits on some language in the decision that the court uses that was, contemporaneously perceptible. And Mike thought, well, okay, so, that must mean, if the images and sounds, that must modify by people watching. So, contemporaneously acceptable by multiple people would equate to a public performance, and if Aereo or some other hypothetical service just used some kind of algorithm to ensure that nobody could be watching the same program at the same time.
(Webpage: Forbes: 3) is in-line streaming legal?)
Denise: then maybe they have a legally viable service on their hand. As I read through the opinion, I don’t think that’s what contemporaneously perceptible modified, I think the court was talking about sounds and images comprising a performance being perceptible together. And that is what was critical for the court in finding that there was a public performance and so I don’t think that simply separating viewing by the customers is going to pass this course test. Really fascinating question raised by Prof. Goldman, I’ll keep this one to you, Bennet is the impact on this case on in-line streaming? Prof. Goldman posits that sets were just not going to look at the technology behind the scenes. If it looks like a unicorn and sounds like a unicorn and is a duck than.
(Webpage: Webpage: Forbes: 3) is in-line streaming legal?)
Denise: maybe in-line streaming is a duck too. Because it doesn’t matter that everything going on behind the scenes technically makes it not a copyright infringement. What you think of that one Bennet?
Bennet: I mean, and that’s the issue, the fact that they are saying that dealing with any DVR type service, how does the DVR aspect of the service survive. I think this Supreme Court’s decision is definitely going to hurt services in this area and its anti-consumer, it looked like something that would benefit the consumers. And I don’t think they really spelled out in a way so that future people venturing in this base have a roadmap for how to do this without violating copyright laws. More or less if they do something that looks like a cable system, they’re going to get nabbed. And so, how do you, you really don’t, How do you innovate around that?
Denise: Yeah, the tragedy of that, you know, maybe having tiny dime sized antenna is not the most technologically efficient way to approach this problem, but coming up with new ways to approach delivery that work better than the systems that are in place now is something that would think that the law would want to encourage and whether, you know, this particular one is it or not, then I fear for what this opinion will do to coming up with such technologies even on behalf of the cable companies, you know, if they wanted to take a different approach towards delivery of their content. They may find themselves hamstrung by this decision, which leads to Prof. Goldman’s last question: will this opinion chill innovation? What do you think Sonja?
Sonja: Well, that’s always the concern when you have the advantage of formulism, when you have, formalism with Supreme Court opinions or legal opinions in general
(Webpage: Forbes: 4) well, this opinion chill innovation?)
Sonja: is that people are all on the same page, they understand, here’s the text, what we’re supposed to do. Here’s what were supposed to follow, but when the court says, but if it kind of looks like a cable company, at least to the uninformed user just sitting there, then we’re going to call it a cable company, suddenly all bets are off. And, so we could have innovators out there who have come up with new ways or in the future will come up with new ways that they say, well, I looked at the text of the copyright law. This looks fine to me. But to someone sitting on their living room couch; it might look like a cable company. So am I in trouble now and should I continue investing time and resource and my expertise into innovating this new technology. So that’s definitely the harm that calms with the court again choosing substance over formalism in this kind of situation.
Denise: So, the question that kept coming up in the run-up in the case and that I think remains unanswered now; along these lines is okay, so your dropbox, or your Google drive or your anything that stores customers’ data in the cloud without doing close packet inspections and content ID matching of that data. What do you make of this? Are you now in jeopardy, you and your cloud service? What do you think Sonja?
Sonja: I, that to me is the million-dollar question, I just wished I know, the court went out of its way to say, you know, this is it going to apply or we don’t think this applies to any other kind of cloud-based computing or streaming, the court kind of charmingly used and went back to a 2008 dictionary to tell us what streaming means. So they tried to carve that out. But it’s a little hard looking at the opinion to know truly what the feature there is. I don’t have the answer.
Denise: Well, as I said we could talk about this particular decision all day, but we will just have to watch as these questions and their answers unfold for us. And I’m sure we will be talking about this case more in the future. But right now. Let’s go to another very interesting Supreme Court decision issued this week that impacts privacy.
(Video music playing: wording of privacy on screen)
Denise: So, an open question in the law for quite some time had been, whether law enforcement, police officers could search your cell phone incident to an arrest without a warrant. Much like, sort of related, unrelated issue that we talk about a lot on the show whether you can be required to give over encryption keys in connection with government or law enforcement investigations of you or something where you might have evidence. This is your phone incident to an arrest, the Riley case said.
(Webpage: wired: cops can’t search, cell phones without a warrant, Supreme Court rules).
Denise: your phone cannot be searched without a warrant. So, we now have a definitive statement on that point, some good reasoning from the court about the role of portable technology in our lives and what people actually put there and why this is something that is more prone to needing privacy protection than anything else that might be around or on you in the course of being arrested. So, now we have some clarity on this point. I think, Orin Kerr, again somebody very educated and insightful law professor giving us some good food for thought. We are now in the digital age and quantity of data and the qualitatively different nature of that least some digital records changed how the fourth amendment should be applied. He also says it makes little difference if the information is inside your pocket, oh, this is going on to another point. So I’m going to raise that in a minute. The extent to which this decision may expect, impact cloud stored data as well. But let’s start first with the notion of needing a warrant to search your phone. The court was unanimous on this one and it seems to be held by everyone except law enforcement as a good and well-reasoned decision.
(Webpage: Forbes: cops need a warrant to search your phone, rules Supreme Court: picture of cell phone with large sticker on front stating ‘I do not consent to the search of this device.’)
Denise: Evan, what’s your take?
Evan: Well, it’s interesting to see such clear guidance on it. I’m a little bit surprised about that. That this was a unanimous ruling, I mean, there was one concurrence by Justice Alito, who took issue with sort of the pedigree of this ideas for a search incident in an arrest. And that is a context we’re talking about here. Whether or not it is reasonable for the cops to search your phone in a search incident to arrest, this is when you have already been placed under arrest, doing that without a warrant. So, in a certain sense, it’s sort of a narrow question, but it still is one of great importance here because a lot of people who get arrested have cell phones and a lot of people carry cell phones, mobile devices, smart devices that have all of this information in his here. So it definitely is, I’m certainly not going to quibble with how someone could characterize it as a real change or at least a clear declaration that courts are willing to look at the digital content in a qualitatively different way. We sort of saw this foreshadowed in the concurrences in the Jones decision. That was the GPS, omnipresent surveillance case from January 2012, where the court held that that was a fourth amendment violation to put a GPS device on somebody’s car without a warrant. Majority Justice Scalia our hero in the Aereo case, in that situation, wrote the majority opinion were saying that it was property interests at stake, but Justice Soto Mayor, in particular, not so much one of our favorites with the Aereo decision; but in this decision talked about this idea of things being qualitatively different because with all of this information, you can get such a more higher resolution picture of what someone is doing. So, particularly what happened in Riley here was the refusal of the court to extend the rule that once you’re under arrest, you essentially lose all privacy rights for everything that happens to be on you. For example, there was a case called Robinson that the cops found a cigarette pack in the guy’s pocket, opened up the cigarette pack and found packets of heroin. That’s, you know, the ruling that it was okay without a warrant, and it wasn’t a violation of fourth amendment. It’s well, once you’re under arrest. You cannot expect privacy within or about this stuff in your immediate area, and there were two or three different cases about all of this here. But the court recognize like, whoa, we cannot extend this same line of thinking into digital devices because of all the information that happen to be on there and more over there is this indication that there is a recognition by the court that not only is there information on the phone, Itself , your contact list, your photos, your stored emails and all that stuff but there’s the ability to access data stored on servers elsewhere, which, as Orin Kerr, very aptly points out, is this foreshadowing than to a decision from the Supreme Court in the next few years that you do indeed have a fourth amendment expectation when it comes to data stored in the cloud. So, some pretty intriguing things that the opinion actually says along those lines and some things that could be going on in the Justices minds in the near future as well.
Denise: Right, he calls out language as well. That court says, it makes little difference if the information is in your pocket or on remote server, if the contents are obviously protected, it would be pretty shocking, Kerr writes that if the court thought that the contents on remote servers are protected to. So, that might, again, that wasn’t before the court in this decision, but it might lead to some clarity on to what extent a warrant is required to get at say your cell phone records. Records of calls that you made and also other cloud stored or remotely stored data in the hands of third parties, Sonja anything you want to add to Riley?
Sonja: Yeah, I think Riley is interesting compared to Aereo. Where we see the struggle to sort of analysis I something that we knew, and are familiar with. With the last 20 years. Here the court refuses to do that, we have a body of fourth amendment law that is based on physical evidence and some eyewitness evidence, and the court basically says no, we are not going to apply that there, this is different and we are going to recognize that it is different. And I think, or in his corrects that this is about computers, because it court flat out said, we called them cell phones that they are minicomputers that we carry around. So yes, it is a computer. And computers are just quantitatively and qualitatively different, there is just far more information than what it used to be. They could take out your wallet and you might have some pictures and you might have a budget receipts jammed in there, but there was a limit a physical limit to what they might learn about you through that search. And that this is just on a different plane. And so the court was really quite comfortable in a way and stepping aside from the analogies of the past and saying that this is different. I mean, it is taught into our fourth amendment law and typically we have a requirement for there be some search for a potential law enforcement danger, danger to law enforcement, they are saying that that is just not there. And they are clearly recognizing there is this immense privacy interest that, there is so much that they can learn about you in the course, there could even be, beyond just the data that might be stored there. It might give it accesses to you might have an app on their that lets you look at, have a camera in your house and now they can see into your house or however the limits are so much more than what we had before. So, the court was willing to realize it was different, and it makes it very exciting in the facts that they did that unanimously. I think it does show that they are recognizing both a privacy interest here that is stronger then perhaps we have seen them do in the past and also a new approach, going into viewing computers with eyes open and the lower courts have been heading this way for some time. This opinion has been consistent with what is been going on in lower courts, but it was very refreshing to have the court so unambiguously embrace this view of computers and privacy.
Evan: Sonja, you are so right about the court’s willingness to look, to embrace it from a new perspective with the digital, in the digital context and not use any old analogies. And, one analogy I can think of them, having made of an old-time analog analogy is to draw that distinction, I thought it was interesting and I like to see what you think about it, when they said you can actually learn more about a person by searching their cell phone, then what you could ransacking their house. The Schimmel case is one of the big cases about searching to an arrest and the facts there were, the guy was arrested and searched the whole house, including the attic and the garage and pulling out drawers, and that was a constitutional search. But then you have just got this tiny little area, this device where there is all this information where you could indeed learn more about a person than ransacking their house, just for example, where they have been, any kind of geolocation that is stored in that phone. So, it is, it’s more than just a pronouncement to say that it is qualitatively different, if we think about that it is really true, don’t you think Sonja?
Sonja: I do, and I think to that, they seem to be focusing on this idea of want to see. It used to be that they would say, the police could search your pockets and we pretty much let them search your car, we have been pretty open about that, but you are right. Don’t let the police law enforcement searcher house without a warrant, because that’s just quantitatively there is just so much more, and the computer that we have in our pockets these days is more similar to your house, your bank robbers or your health records everything that could be on there. So I think it also to me says something about how they might look at some meditating cases that are really just about want to see and that could come out someday. In cases about the NSA. And just issues about what companies can do, when each individual bit of information doesn’t seem particularly invasive, but the quantity of it together does seem to be bothering the court here.
Denise: To the point of contrasting and comparing this case to Aereo, one of the funniest tweets that I saw in the wake of the two decisions coming out on Wednesday, was by Prof. JH Jarvis not to be confused with our Jeff Jarvis, who tweeted, could Aereo hide all of its antennas in phones so the police can’t find them? I suppose maybe that would be the solution. We should probably put an MCLE passphrase into the show. I think I’ll make “cue the band” the passphrase, because in chat, Ibookere-, was asking whether Warrant was a metal band. And yes, indeed we got the answer that it is or was
Evan: Cherry Pie, right?
Denise: there you go, that’s right. So, cue the band is our first passphrase, if you are listening to this show for MCLE or other professional credit. This is a particularly good show to be doing that with, I think, with our illustrious panel and the great topics and trying to understand what has unfolded this week. If you want more information about MCLE or other credit for the show, head on over to the twit wiki wiki.twit.tv find our show here This Week in Law and there is a ton of good information aggregated on various states and their MCLE requirements and how we might fit into them for you. So, let's see, we have got Bennet back just in time, had a little technical glitch with him, he is back. Bennet, we have been talking about Riley and just the fact that search incident to an arrest now requires a warrant to get data on a cell phone, and the court’s reasoning on that. One thing that people should bear in mind though, they can still put a passcode on their phone or their computer. If we’re going to assume like Orin Kerr, that this reasoning would apply to all computing
like devices that you might have with you during an arrest. And the passcode would prevent any access until someone had obtained some sort of court order or warrant requiring you to fork over the passcode, which is an entirely different legal issue. Do you think that the passcode or encryption key issue is impacted by this case?
Bennet: well, it was raised by the case in California in the arguments that one of the concerns was that, unless you did this, they still have you while they’re getting a warrant, but they still have ability to hack into your phone and delete staff. And there’s different codes and different ways that you can do that and so their argument was that the whole debate is whether this is an incidental circumstance. Once you have the phone, is it secured or is it still at risk and the state of California tried to argue that we need to get that right away and so that’s how that was addressed. Now,
Denise: You are talking about doing something like a remote wipe on your phone, while it was in the possession of the police?
Bennet: Yes, and so that was the concern raised by the Atty. Gen. And I also think one interesting point. The ruling confirms what I call the Mickey Rourke rule. And I don’t know if you ever saw the movie Body Heat, but there’s an important theme in the movie where William Hurt, who plays a lawyer in a love triangle and Mickey Rourke is the client he helped get off earlier in the movie. And he is going to him in the end of the movie asking how to build a bomb, obviously to take care of the third wheel in the love triangle. And Mickey Rourke repeats some advice that Hurt had given to him earlier. He says, ‘Any time you are going to commit a crime, if you’re a genius; you can think of 15 mistakes that you will make. No actually, anytime you’re going to commit a crime. There are 15 mistakes you make, and unless your genius you’ll think of 20 and believe me, you’re not genius.’ And, this incident here, these are gang members who are committing crimes and then taking pictures of it. And so then carrying the process by which they took this evidence with them. And so I think it’s further validation of the Mickey Rourke rule, that somehow, criminals often do stuff that makes it easier for them to get caught. But here the court made the right decision, cops can still get access to it but they still need a warrant.
Denise: Evan, you were with us last week that I did use story about the guy in Florida who was insta-gramming his illegal stash of weapons. And got apprehended, so.
Evan: I love that
Denise: you know, it raises a good point about this decision. And I have not read this one as closely as I did the Aereo case; but I wonder if you guys can fill me in with this. If they came in, or not. It seems somewhat ironic to me, I’m very happy with this decision, and I’m very glad it was reasons and concluded the way it was, but it is still really ironic to me that we are talking about the high privacy value in your phone and other mobile devices. When we live in an era when those devices are the things that most, that people most use to dispatch their privacy, to do away with it, but of course they do so volitionally or idiotically in the case of the guy in Florida or the person in the Riley case. So, I don’t know, it’s neither here nor there, it just strikes me really funny that we’re talking about the high privacy value in these devices that, when they did not exist people had a lot more privacy. So I thought I’d toss that out there.
Evan: It underscores the power, I mean, I don’t know if you have to necessarily have to characterize the court’s decision as relying on the high privacy value. I think that that’s just the natural inclination and the natural conclusion to jump because it is fourth amendment. So, we think in terms of privacy and they probably say privacy somewhere in there, but really, if you boil it down to a more fundamental level, to a more general level, it is just the power that these have by which you can communicate with so many people. Generate so much content. So many different kinds of content that tell different aspects of the story, so that is where you can sort of resolve any irony there by saying, wow, you can do a lot for good or ill with devices, whichever you choose.
Denise: And we should highlight the existential circumstances that remains in place after Riley. There is a good article on this, all of this stuff that we are discussing today you can access the end our discussion points for the show. They are available @delicious.com/this week in law/256 and, oh, no, we are 265, sorry, I got a little verbally dyslexic there. Anyway, the police still have the right to search your phone without a warrant if, it’s a child abduction arrest, they can still do it then, if they suspect that someone is in imminent harm or there is some eminent threat of evidence destruction. There will probably be litigation about that point, how you demonstrate that an eminent threat of evidence destruction, particularly given what Bennet was saying a moment ago, don’t you think Bennet?
Bennet: I think that is an important point. It is a whole different case that you take measures, or you just get a warrant and get access to it.
Denise: Right. So, yeah, I mean you’re going to have to, I guess, extrapolating from what you have said about what the state of California argued, Bennet. It would not be sufficient for the police officer, law enforcement agency to come in and say, hey there is an eminent threat of evidence destruction because Apple allows you to remotely wipe your iPhone or whatever device you are using and whatever might be available. That would be enough. Do you think?
Bennet: No, unless there were some new advance in technology, this requires planning ahead, and going back to Mickey Rourke rule, I don’t think these are the type of people that plan ahead, I mean, some of them might. Some of them might have that capability. And so that becomes an issue, maybe there is something, you know, a counter measures that they can take to prevent access to it, you know, maybe just taking the battery out or something. And it can’t be accessed. I think those are all possibilities, but an important point, and this was raised in the first circuit’s decision that at no point did they think this phone was a threat to them. And the whole reason for making these exceptions incident to arrest are because of the need to preserve evidence from destruction, but also secure and make sure the crime scene is safe and the police are at risk. And, so, the small possibility that the perp may have the capability of later just hacking into it. I don’t know if that just outweighs the privacy interest.
Evan: We probably, while we are at it, ought to make a defactor rule that if you are investigating a federal employee, particularly at the IRS, and you think that their electronic data is going to be destroyed” you ought to be able to get at that right away. I don’t mean to say anything about Lois Lerner, or anything like that but it ought to be good practice, just put that out there.
Denise: All right, well, I think we are going to move on to our next big topic of discussion for the week. Since we have Prof. West with us and this is very much in her wheelhouse. We’re going to talk about federal shield law and who the heck we think of as a journalist these days. There’s going to be some, hopefully new legislation about federal shield laws. So let’s look at what’s going on in that policy arena.
(Music playing: Legislation & Policy)
Denise: The federal shield law is something that lawmakers have bandyinging about for some time. Recently some newsgathering organizations encourage them to make their bandyinging more expeditious and affective. We still don’t have a federal shield law. So, Sonia, why don’t you start out by telling us your impressions of the proposed federal shield law that we might see some time in the future and your thoughts about whether we will see it, and when?
Sonja: So, you’re right, this is an issue that has had legs for a very long time, really, going back to the 70s and we had then a Supreme Court case where some reporters tried to claim a right not to reveal confidential sources and not testify in front of a grand jury, as a constitutional matter, as a first amendment matter, and the court said, the court basically said no. That opinion is open to interpretation, but for the most part, the court said no you do not have a constitutional right, so they had to turn to statutory means. And that a lot of state levels; we have had these shield laws saying that reporters for journalists or the press or however they are referred to don’t have to testify before grand jury’s about their observations, or they don’t have to reveal confidential sources or they don’t have to turn over their notes or their, if they are television or broadcasting their outtakes. But we haven’t had one on the federal level, although they have been raised many times. but we have recently had one get through to the House and there is pressure on the Senate to go forward, but there has always been this sticky problem with these, which is, even people who really support these kinds of rights and protections for the press, we have to be able than to figure out who the press is, who are the journalists that would get to claim these kinds of rights and for the most part. At least to a lot of people looking at this issue that problem, that definition problem has been one that has been so difficult that we sort of just thrown up our hands and said the whole thing is off. And of course now today with sort of web based journalism. It’s even murkier than it was before. A lot of these state laws that I mentioned that were passed relied on the medium of communication to identify who was a reporter. If you,
(Webpage: Politico: Josh Gerstein: media seeks Senate vote on shield law).
Sonja: they assumed if you wrote for a newspaper or if you were on the radio or television, there was a good chance you were a journalist because regular people didn’t have access to those kinds of mediums of communication, but that just not the case anymore. Everybody is on Twitter, whether you are a reporter for the New York Times or you’re just writing about your day. So, we cannot use that method anymore to try to separate out the people who are journalists in the press from other people. So there has sort of been this discussion about how we could possibly figure out who is a journalist. So that we can give them these rights and protections that a lot of people think would be very useful things for them to have. But we can give them to everybody, so that’s really the dilemma that keeps coming up with the shield laws.
Denise: right, and the bill that is winding its way through the process now has a solution for that, it wants to be able to provide a judicial safety valve. If there is someone whose status is sort of questionable whether they should be entitled to shield law protection; a judge would get to come in and say whether that person is covered under the law or not. So, we are back to kind of the Justice Scalia’s guilt by resemblance issue. In fact, I think we should make ‘guilt by resemblance’ our second MCLE passphrase for this episode of This Week in Law. Because, let’s see, there’s a good quote from Columbia Journalism Review, the news organizations have said, there is a safety valve for bloggers under this bill, if someone might slip through the cracks, it allows a judge to declare someone a covered journalist. That extra person gets to come in and say, "If it quacks like a duck and walks like a duck, then it's a duck, not a unicorn." (Laughs) So do you think that — I know you've written an article on the topic of who is press, Sonja, a Harvard Law Review article that I've gone through not as deeply as I hope to. (Laughs) So I'm going to ask you to expand on some of the definitions there. But let's — as a starting point to getting into that, do you think that the proposed bill provides a good framework that will be able to get people covered who should be covered by the Shield Law, while not having it cover people who are what you would qualify as occasional public commenters?
Sonja: I do. I think — at least, it's certainly a good start. I am sort of bothered by this idea of, because we are afraid we can't do perfect line drawing all the time, that our solution is going to be to give no kinds of press protections for — usually, this comes for the active news gathering. We all have lots of protections when we speak or publish; so really, these issues are about the things that happen while you are — while a journalist is gathering the news, that you want access to something or you want protection for a confidential source or whatever it is. And usually, our take has been, "We can't figure out this line perfectly, so we're not going to give these kind of protections to anyone." And I think that's a great shame. I think it's a loss that we have for society as a whole. We're losing out on all sorts of potential news gathering that we could have. We're not giving the protections to the people who really are sort of day in and day out doing the functions of being a journalist. And that benefits everybody; but if we don't give them the protections they need, it comes at a loss to all of us and the news that we're giving. So first of all, I'm not quite as concerned of getting it exactly right. We do have to have concerns, however, of favoring certain kinds of speakers; and that's been a concern that's out there, that there's certain types of journalists who work for the traditional mainstream media. They tend to see the world one way. But then we have other people who are more likely now to be bloggers — someday they could use a different kind of technology — who are a different kind of voice. They come from a different kind of background; they have different things they want to talk about and news that they want and information they want to share with people. And we have to make sure they are covered, too. So as long as we have, in my view, content neutral, viewpoint neutral, kind of approaches to make sure we are finding the people who are informing the public and checking the government in a regular manner to an established audience, I'm comfortable with the courts doing that; and I'm comfortable with having the legislatures try to come up with a solution for that. I think we should at least try because this way, we get sort of more rights — for at least some people — and more of this benefit. And everybody else maintains these very, very bright, vibrant speech rights that we all have. So we're not talking about taking rights away from anyone; we're talking about adding some additional protections for those who are really doing the work of informing us, gathering the news, and checking the government. And so I'm happy to see that this continues to get new information. I don't think we should be so scared of the definition problem that it stops us from — paralyzes us from doing anything.
Denise: Yeah, that —
Evan: Sonja, how does that work when you get the First Amendment into it there? Because I know the First Amendment has several different rights in it. It's more than just free speech; it's also the freedom of the religion — a couple things there. You know, religion stuff and then —
Evan: — freedom of the press is another one. I mean, how is the analysis articulated when it comes to these various questions? Is it one more of free speech or freedom of the press or a little bit of both? What are the — kind of like the outer contours of how that discussion is had?
Sonja: So the First Amendment says: "Congress shall make no law abridging the freedom of" — and for our purposes here: — "freedom of speech or of the press" is what it says. These are often referred to together as sort of the expression rights; but for the most part, all of our focus has been on the speech side of things. We have a very developed speech jurisprudence. We give very strong protections, for the most part, to speech. The Supreme Court has never found a right or protection to lie solely in the press clause, which is something that I and some others are critical of, suggesting that it has started to make the press clause of the First Amendment a mere redundancy. And I think it was supposed to mean more than that. In fact, when you look at some of the sort of original discussion about it, it actually appears that the press side of things was far more important to the framers than was — in the framing generation — than was the speech side of things. But they're both in there together — and you're right — along with other rights of religion and petition and assembly, and that's all together in the First Amendment. But it's been sort of a situation of the speech clause being the Court's favorite child, lavished with attention, and the press clause is the neglected one that has not gotten any attention. And the few times the Court has considered it, it really has been this concern about, how do we — first of all, can press rights go to everyone; and if so, they really start to look a lot like our speech rights, which also — our speech rights also include a right to distribute our speech and reach an audience. And we don't get anywhere else. Or if — but if it doesn't, if it means something different, then suddenly we have a situation of trying to figure out, who are the people or the entities that could have these rights and protection? And that's just — it's scary to a lot of people. It's problematic that we might get into a situation of sort of government licensing and selecting on different kinds of information. So that is the concern, and that's what's stopped, I think, the Court from having a lot of press cases.
Denise: Right. Because I guess what could happen is, once we get this Federal Shield Law, if it were to draw some kind of bright line, then you would have, conceivably, more problems along the lines of what we've seen — and you've been tweeting about, Sonja — with SCOTUSblog, the definitive blog that covers all of the developments and decisions of the United States Supreme Court and has wrestled, historically and quite recently, with the question of whether it qualifies as press. In its case, it's not because it's trying to shield sources, but because of the various access that might be granted to someone designated press and might not be granted to a blogger. So it does cause me some concern. I've read enough of your article to grasp that the occasional public commenters you identify would not include someone like SCOTUSblog, but there are others that I think are in that gray area who I might want to see have at least the legal and constitutional press privileges. Maybe not all the access privileges, but if someone's just an occasional public commenter and they get some really sensitive piece of information through their public outreach and they have a source they need to protect, shouldn't they be protected?
Sonja: Well, obviously, it depends on the situation. But right now, we're in a situation where nobody gets those protections. So nobody has this kind of protection if they get information from a whistle-blower or if they need to somehow violate which what would otherwise be a generally applicable law because they're pursuing news — nobody gets that. So I'm still talking sort of about a situation where, can we at least try to identify the repeat players who are maximizing these benefits and at least give it to them? And then we can figure out where this gray area is. But — there's no doubt there's going to be a gray area, but what we don't want to see is the Court saying — or the legislatures saying — "Because anybody could potentially have all these rights and then all our system falls down. If everybody doesn't have to testify before a grand jury system, our grand jury system collapses. That's a problem, so we're not going to give this right to anybody." Or there's a Supreme Court case about — some story started coming out of this local jail, that there were cruel conditions and that there was an inmate suicide and there was problems. And some journalists wanted to have access to the jail; and the warden basically said, "Hey, we're running a jail here. We don't just let people off the street come in and take a look at our jail, so no. Nobody gets in." And the Court agreed with that, and the Court basically, again, said, "We're not going to look at whether it's a reporter who's trying to gather news about an important function, about whether our jails are cruel and inhumane, or it's just some interested, curious bystander who wants to walk in. We can't make that decision, so nobody gets in." And we all lose out on that story and on that news gathering. So yes, I have no doubt that there are plenty of gray areas where it's like, Boy, I sure wish we could give the right to this person, but maybe they don't fall quite as having shown that they have done this consistently enough that they've reached a broad enough audience. But I also think there should be a way that, if they keep doing it, their audience can grow. SCOTUSblog is a great example. In sort of the beginning, it was just sort of this service for a law firm to talk about the Supreme Court. But now they had almost 20,000 people yesterday on their site waiting to hear about the Supreme Court. Without a doubt, they're delivering news to a broad audience in a timely manner; they're being the press. So they're functioning in that way. So at what magical point did it happen? I don't know. I don't think we should get so hung up, though, on line drawing — like I said — that it stops us from giving these important protections to people who could use them.
Denise: So Bennet, if I'm reading your comments that you sent us before the show correctly, I'm guessing you have a little disagreement with Sonja's premise and that your position might be more in line with Dan Gillmor, who has historically talked about, "We should be acting at whether the act in question is an act of journalism and paying less attention to who the actor is and what their journalistic track record is." Am I getting that right for you?
Bennet: Yes. And that's just not true in this context. I mean, in Internet space, we often talk about the Federal Trade Commission. And you look at their statue, it's — they're celebrating their hundredth anniversary this year. And it's just simple. To regulate fraud and deception in Internet commerce. And so — or unfair business practices in commerce. And that's simple; it allows them to evolve and deal with actions. And I've found that my dealings with Congress and trying to explain technology issues — where they make mistakes is when they attempt to define technology and not define conduct. And it seems that that's always the problem. And here we're bogged down on, who is a journalist and who isn't? versus, What are they doing? Are they doing something that would merit protection? And I always think that a conduct approach to policy-making is a sounder one.
Denise: Right. And you point out — I'm not going — you're probably not going to blow your own horn on this; but you do a great show, as we mentioned at the top of the show, along the lines of ours: The Cyber Report. And you're up for a couple of really prestigious press awards for your show — just this weekend, it sounds like, Sunday night — for Best Public Affairs Talk Show against Warren Olney; and against Chris Hedges for Political Commentary at the L.A. Press Club Awards. So you and our show and lots of people out there, I think, are good examples of people in the gray area of, what the heck are we doing here? (Laughs)
Bennet: Right, and —
Denise: Sitting and talking about recent Supreme Court decisions. Does that constitute journalism? Certainly, we hope, getting good information out there. I certainly would want to have a lot of pow-wowing and consultation and hand-wringing, if necessary, about whether what we do each week on the show constitutes journalism from a legal and constitutional standpoint and a shield law kind of perspective. So as far as drawing a line of any kind in order to get this — a shield law in place, do you think that's wise, or no?
Bennet: Well, I mean, I'd prefer not; but yeah, having a shield law is better than not, in some balance. But I just think I'm troubled by the line. And the funny thing about SCOTUSblog is before any journalist writes a story, before — may not be the first place to go — before that story gets admitted to the editor, they consult the SCOTUSblog, more likely than not. (Laughs) And so if they're deciding that's not journalistic, I don't know what is.
Denise: Right. Sonja, help us understand why line drawing is something that we need to get used to and get our arms around here so we can get something in place.
Sonja: Well, as I said before, I think that it's just been always a thing that's stopped us from having any kind of press protection. It's what made the Supreme Court basically spend the last hundred years reading the First Amendment sort of with its thumb kind of over the press clause part of it because we didn't want to get into it.
Sonja: So I first just want to get people over sort of that hump. And I also would say, about sort of whether your show is the press — and part of it is, you might not need to be. For the reasons I would consider, I don't know how often you have a confidential source, how often you need access to an accident site because you're there to gather the news, or how often you're going to go under cover and you need to make sure you're not going to be charged with fraud, or — you know. I think a lot of people out there, their speech rights are absolutely ample — which, again, are wonderfully robust and happily so — for what they want to do, which is very valuable; it doesn't take it away. But it just means that we actually — they're doing what they need to do really well, really happily, without having the title of press so that they can get the press rights that would possibly be out there. So maybe, to some extent, we're looking for the people who actually need these kinds of protections so we can give it to them, and that's just simply not everybody. That's — you can be doing something very valuable via your speech rights. That doesn't mean you have to say this is the press. But we have some show who is doing these things, could use these things, then I do think it's perfectly appropriate to sort of look at the record of saying, is this what they've been doing? Have they been functioning as the press? Have they been reaching a broad audience? Have they been doing it about these sort of regularly, about sort of newsworthy matters, which is a term that the courts have used before and have some familiarity with. And we can look at this path and say, Yes, yes you are. And maybe you weren't two years ago, but maybe you are today. And I think we're going to have to live with that sort of ambiguity. But at some point, you're fulfilling those functions, and you're in our crowd that we would like to protect. But again, we all have these speech rights, wonderfully so —
Sonja: — so that actually makes this less scary because, if we conclude this show isn't the press, you're still really, really free to talk about all the information that you want to talk about.
Denise: Right. And I think there's a distinction between trying to come up with whether the show is the press for sort of commercial purposes, who's granted access to, say, a conference at a press rate or on a press pass, that kind of thing; and whether someone is considered the press for legal or constitutional purposes. And maybe you should enumerate for us, for everyone who might not know, what are — hopefully, this shield law will pass, and the press will have a federally recognized right to protect sources. But What are the other — additional, non-speech protections that the press already enjoys?
Sonja: Well, right now, nothing. The press doesn't enjoy other protections, which is part of the problem. Like I said before, the areas where there could be potential need tend to come in news gathering. That's where we have this issue. So we do have cases that come up where we saw — sort of the press wants to get access to a scene. In my article, I talk about the Occupy Wall Street. We had reporters who were being arrested. And they're showing their press credentials, and they're getting arrested with everybody else when they were there to try to cover the story. But we don't care. We don't look at what they were there to do or who they are because we don't separate this kind of issue. So access issues — access to information, access to government meetings. A lot of the stuff is given to us now statutorily, but there's no constitutional right of the press to have access to try to figure out what it is that the government is doing. So that's — it's good that there are statutes there, but they could be broader or they could be taken away, which is a concern. The press is protected only by statute, not by Constitution, to not have a search warrant issued on their newsroom to just go through all of their files in their computers. The court rejected that as a constitutional matter, but the Congress came in and passed a statute there, which is great. But then, of course, we've had these more recent issues where we've had a potential — a reporter being named as a potential aider and abettor for receiving leaked information. So potential criminal charges. We don't look at that any differently than we would anyone else; and we of course had the administration getting information about reporters' phone calls and who they were calling. So we now live in a situation where we have reporters who are — they're like the drug dealers on The Wire. They're using burn phones. They make a couple calls and they have to throw their phone away because we don't give them any special rights in terms of not having their — looking into who it is they might be calling on their phones. So — and then of course, like I said, undercover issues. If ... [audio becomes distorted] ... goes undercover, but to do so, they need to sort of not be honest about who they are or why they're there; and then they get a job, they could potentially be liable for fraud or for breach of duty of loyalty to their employer because we don't care that they were a reporter who was trying to gather a story. So these are the areas where we could potentially have protections. Rights, though, of confidential sources has always been sort of at the forefront. It's always been the main one that people look at. But that also tends to include not having to testify about your observations. You're a reporter, and you're — you just go and you see people do things. You don't want law enforcement to call you in and suddenly you have to go on the stand and testify because that makes you kind of just like a cop. It makes you just like another — an arm of law enforcement. You're a reporter; you're there for a different reason. So you don't want to have to be called in. So reporters are fighting for that right as well. So there's a host of news gathering issues that come up with reporters for which they have no rights that are any different from anybody else, which tends to be pretty minimal.
Denise: Right. I really encourage people to go and read Sonja's article in the Harvard Law Review. It's really nice that Harvard Law Review articles are out there and available for everyone to read on their own time and for free; so go check that out. We have the link in our discussion points.
And we have another speech story, courtesy of the Supreme Court. I think the technological tie-in with what we've been discussing about who is a member of the press in the digital age is quite apparent, doesn't need a whole lot of discussion. I'm sort of struggling to find a technological tie-in, and I think I've got one for the McCullen v. Coakley case in which the Supreme Court struck a protesting buffer zone around a Massachusetts abortion clinic. And my question for you, Sonja, since we have you on as a resource to help us understand these speech and First Amendment issues, is: Do you think this decision was correctly decided, and why wouldn't a buffer zone around an abortion clinic — I'm not a First Amendment lawyer, but anecdotally and perhaps from my law school career, I have in my head the notion that you can curtail speech. If there's a clear and present danger, it's okay to stop people from yelling, "Fire!" in a crowded theater; so why doesn't speech around an abortion clinic — where people might well come to blows with each other or otherwise have an incident — why wouldn't that fall into that category?
Sonja: Well, you see the Court here really having some very different opinions about what happens outside an abortion clinic with these protesters. So on the one hand, of course, we have incidents of violence, of great aggression — there was a shooting in Massachusetts, which was what sort of led, initially, to this buffer zone law being passed. Very violent issues of public safety which the Court, at least in the majority opinion, completely recognizes. But then, the Court also talks a great deal about — and particularly the dissenters — about a different kind of protester, a protester who feels very strongly against abortion and wants to try to talk to the women who are entering these clinics. They're often described, particularly by [unintelligible] as this very sort of gentle counselor, grandmotherly person, who wants to go up to the women and say, "Dear, can you reconsider your decision? Let me talk to you about this." And so it is the concern of sort of the more gentle protester that is giving pause to the Court here. And indeed, the petitioners who were surely selected for this case fall into that second category. So the concern is that they are not being allowed to say what they want to say in this particular area even though they would not cause any kind of public safety issue. They simply want to make their views known about this issue that is of great importance to them and that that is a free speech violation. And so the Court had upheld other kinds of zones — an eight-foot sort of floating zone back in 2000, and saying, "You can't get too close." But this was a 35-foot zone; and so the question was — I think, to some extent, was, had the state proven there truly was this public safety issue to have this 35-foot zone to stop the more gentle counselor from coming, or were there ways to use other kinds of more narrowly-tailored approaches to simply weed out the more aggressive or potentially violent protester? So that's how the majority saw it, that they didn't make their case, that this couldn't be more narrowly-tailored and that they're infringing on the rights of these speakers who are not the violent ones, who are not the ones who are going to cause this public safety issue. The Court, of course, is having a lot of criticism because it does allow buffer zones in other type of situations. It upheld buffer zones around funerals in the Westboro Church case; it upheld buffer zones around its own courts, around political conventions. We have free speech zones in other kinds of situations. So there's a criticism about sort of, Do we allow sort of having these zones in particular areas or not? And I think that's really one of the key questions about this case.
Denise: My question, bringing in the world of social media and the Internet had to do with whether the Court — consider now, I have not read through this one of the Court's decisions this week — whether the existence of other avenues of speech such as we see today played any role in the decision and how that impacts the need to make proximity such an important component of protest. I mean, you hit on something that I think answers that question, and that is the gentle protester who needs to actually face-to-face try and confront someone, that that's — they're expressing their speech rights. That seems like an awfully aggressive speech right, perhaps. (Laughs)
Denise: But I was curious about whether the existence of other avenues of speech and digital speech played any role in this decision, or should play a role, when we consider buffer zones.
Sonja: Well, the Court did talk about how the public property is different — or public sidewalks. One of their concerns here was that this included speech on the public sidewalks. And the Court tells us we have just had a tradition that you have to deal with speech that you don't like when you're out on the public property. And they compared that to having to — they talk about if you're on a website you don't like, you can just click off the website or you can turn the channel on your television or you can do these other things. And they say that you get to do; but when you're out in these public properties and you come across somebody who has a message that you don't like, you don't get to turn them off. So in a way, it's not so much the existence of the other social media as saying you had other ways, maybe, that you could have made your point. They actually say you can go to those other forums and just talk to the people you want to talk to, and you don't have to deal with the messages you don't like. But that's not the case when you go out in public. If you're on the public sidewalk and somebody has a message you don't like, you don't have to look at them, but you don't — you can't turn them off. And so they compare the two in that manner, that it's still sort of a more in-your-face world when you're out on the public sidewalks.
Denise: Yep. That makes sense. I sure hope they didn't bring up television knobs again in the McCullen case. (Laughs)
Evan and Sonja: (Laugh)
Sonja: I don't remember knobs, but I think there was a "turn the channel" reference.
Denise: (Laughs) It was a knobby week at the Court.
Denise: All right. Let's move on to a development in California that we've been following, just to bring you up to speed. The "revenge porn" case that we've been watching — and I'm pulling up its name here; we always have trouble pronouncing his name. Kevin — Bollaert is how I'm going to say it — of You Got Posted is going to go to trial. The case can go forward; there's enough evidence. And he's being criminally prosecuted, felony counts of various things. What I'm not clear on is whether the revenge porn act itself is a felony or misdemeanor. Evan, are you any more clear on that?
Evan: Whether it's — it was more like the extortion, wasn't it?
Evan: That he'd done identity theft and it extortion. I don't know that it actually had to do with the posting of the pictures, I mean, in as much as the posting of the pictures would be one of the elements of the crime of extortion.
Denise: Right, right.
Evan: But I think it's more nuanced than just saying he broke the law by putting these photos on the Internet.
Denise: Yeah, I think you're right about that. But he's going to trial, and this will be, I think, an important case to follow in the world of criminal liability for taking these steps. I know this is something that comes up in your practice, Evan, and I'm just wondering if you have an opinion on this case going forward.
Evan: Well, I mean, revenge porn is an awful, terrible thing. It ruins lives, it causes people to commit suicide. So it's definitely a scourge, and it's got to be treated somehow. And if you read the works, particularly of Danielle Citron, she very artfully, very forcefully, and very legitimately articulates some of the ways in which it can be proscribed. But there is a First Amendment concern here. You sort of just tack on — you don't have the right to exist in a world free of all speech that is unfavorable to you. So I'm certainly not going to go over to the First Amendment side and say, Yeah, all revenge porn sites should be protected by the First Amendment. All I'm trying to do is underscore the critical importance here of this content regulation, or this regulation that would prohibit content like this and just show what an important issue and what a fine line there is to draw here, and very problematic. Then, of course, there's the whole issue of Section 230 and whether that should — whether and to what extent that immunizes this conduct and this facilitating of content. And the Supreme Court has said you don't just — just because you're an intermediary doesn't mean you're always going to be protected from direct liability. So maybe it's a new world that we live in. Who knows?
Denise: Right. And over at Ars Technica, they point out that in California we have a new law that could conceivably apply in this case, but Bollaert is not accused under the fact that it's now a misdemeanor to post identifiable nude photos of someone online without their permission in California. So Sonja, any thoughts on the revenge porn case going to trial?
Sonja: Well, I think, like Evan said, that it's certainly a very problematic area of speech law. I agree that there are speech interests there, but I think it fits. I tend to agree with Danielle Citron that it fits, I think, quite easily into our First Amendment jurisprudence where we have exceptions when there are narrowly-tailored restrictions to strong state interests. And we have strong state interests here in having states wanting to pass laws that protect their citizens from having these kinds of traumatic privacy violations done to them. So this seems to fit within that for me. And certainly, to the extent — again, going back to privacy, which we talked about with the Riley case — that as we have this increased interest in privacy and recognition of privacy that, if this isn't private, I don't know what is. You know, Danielle Citron refers to it as "Non-consensual pornography," and how the privacy interest there seems extremely strong. The state interest there seems pretty strong. So as long as it's a sufficiently narrowly-tailored law, it seems to me like it could go forward.
Evan: Denise, I know you want to wrap things up here soon so I don't want to prolong this more than necessary; but —
Denise: That's okay.
Evan: — I agree with you, Sonja. It seems like we could easily craft legislation that's going to make sense in the abstract. But don't you think it's going to be difficult in really trying to apply that as to whether a piece of content qualifies as having violated the statute? And I don't want to get too graphic since, ostensibly, this is a family show, right? But a photo of someone in — well, I won't be sexist about it; I'll say a photo of a dude in a Speedo. I won't be sexist against women.
Denise: (Laughs) Could it — we know you're wearing one right now, Evan —
Evan: That's right.
Denise: — so just stand up, model it for us.
Evan: And I try to bring that up every episode.
Evan: I'm not going to stand up.
Denise: Thank you. (Laughs)
Evan: When it comes to evaluating particular pieces of content and the effect that it has, isn't that going to be where the real difficulty is in all this? Maybe not in crafting legislation that will put the offensive content — conduct, vis-a-vis the content — in a very apportioned space so that it's not violative of the First Amendment. But it just seems like, as applied, this is going to have some real problems whenever it comes up. What do you think?
Sonja: Yeah, I think you're right. And again, sort of definition issues, there really are — they keep coming back as our pickle. And we have, of course, struggled with how to define pornography in general; and we could possibly sort of take from some of that, but even that definition is problematic because it changes from community to community, which is clearly a problem today. So no, I agree; I think that that could be an issue that we could have sort of applied problems of, there wasn't sufficient notice that this particular type of a photograph would fall into this category. I think that's a good point.
Denise: Hey, Bennet, I know you've covered this on Cyber Report, and I think we're back to another situation where Professor Goldman, for example, has criticized the California law that I mentioned a moment ago as being something that we don't actually need, that existing laws can be used to prosecute people like Kevin Bollaert, but your point is that a new law that improves things a little bit is of great value, and we should go forward. Is this another situation of that?
Bennet: I think — still, I mean, here this is a case where they're being prosecuted under existing law. But the new California law has value because you keep hearing this whole meme about the Internet being the Wild Wild West; and people don't know that you can't do a lot of these things. So sometimes, going through the [unintelligible] and even tinkering with existing law, just to make clear that something is unlawful. People forget law has a [unintelligible] purpose. Law is an exercise of society saying, "This is where we stand on these things. These things are unlawful. We do not permit them in our society." And so that alone, I think, has value. And so going back to the earlier point Evan was raising, I think — and the California law addresses this — I think there is a way to address this, and it goes on the issue of, what was the person's expectation when these photos were taken or this video was taken? And — although we can have complete [unintelligible] for Speedos.
Bennet: But I think ... (Laughs) I think — I don't want to see any, frankly. But I think that, if you focus on, would the person or the victim think that this would ever be put on a nationally-viewed or worldwide-viewed website? And is there — did they have an expectation that this would not be shared? And I think that's a legitimate way to address the statute.
Denise: All right. Well, I think we're going to do one more story here. There's lots more we could discuss, but we're going long already this week with all the great decisions out of the Supreme Court that we've had to chew over. Let's — though I can't really end the show without talking about MonkeyParking, which is something that Bennet sent in and has to do with the legal pitfalls of social parking apps, and so impacts the social web.
Evan: I'm monkeying with the machine.
Denise: (Laughs) Yes.
Denise: The City of San Francisco is monkeying with an app called MonkeyParking which was basically allowing people to share information — they say crowdsource information — about where available parking might be. It's sort of a sad statement on the free market economy, in a way. I mean, I'm sure that the people who are out there slogging around trying to find parking places are — and then communicate that they're available — are not in the most upper of socioeconomic strata. But it's a way to make a little extra cash, maybe better than spraying down somebody's windshield and washing, maybe, potentially, quite lucrative; who knows? But the app basically allowed people to post, Hey, there's an available parking place here, and I will give it to you. And I'm sure there's payment involved somehow; I'm not quite sure how the app works. But the City of San Francisco said, "Uh-uh. You're not going to be able to save parking places for each other using an app." The company thinks that it wasn't doing anything illegal, that all it's doing is sharing information. So Bennet, do you have anything to add here? Do you think — who do you think's in the right?
Bennet: Well, I mean, I think probably the city. But I know in San Francisco, there's a — some people have it and some people don't — parking karma or parking mojo.
Bennet: And so they are depriving those people of their property right and their unique and special ability to have parking mojo.
Bennet: And so ... (Laughs) And I love the photo you showed, the major fail. I think I get that one a lot. But — and so, ultimately, I think the city does have the interest in making sure that spaces aren't being tied up. And that is — even broader reason is a lot of energy is wasted by cars just looking for parking spaces, and so I think they have a right to regulate the sale of something that is their product.
Denise: I wonder if this impacts speech, Sonja, that you have a free speech right to communicate where an open parking place is. But does that also mean you have the right to put yourself or something in the way to save it for someone who's used an app to come find that?
Sonja: Yeah. The problem with speech is that everything really can boil down to speech. So we always have this issue; there's always a speech interest somewhere. And so to the extent that we're talking about people saving these rights and then — these spaces and then getting paid for that in a transaction — I mean, it makes me think of how, if someone says, "I'll give you so much money; will you kill my wife?" We don't say, "Oh, that's a speech right"; we say, "Oh, that's a crime."
Sonja: And we don't just get all hung up in the idea that this is speech. So to the extent they're sort of proposing a financial transaction that the city doesn't want them to do, I don't see the speech right having a strong interest. If it's just telling people, "Hey, there's some free spaces here," sharing that information, that becomes more of just, why not? Why can't you share this information? And there are all these other apps that talk — makes me think about sort of telling people about speed traps, and they don't like that. And there's apps that will tell you — everyone puts in there that "I saw a speed trap; tell everybody there's a speed trap here." Or just even flashing your lights — is that speech that you're telling them there's a police officer coming up? And they don't like that kind of speech. And then, maybe of a little bit more of a speech interest, but it's probably outweighed — could be outweighed by the city's interest to have these bases used efficiently. But yeah, the speech interest here is, I think, pretty minimal, overall.
Denise: All right. Well, we're going to move on here to our tips and resources for you this week and wrap up the show. I'm afraid that our tip — by the way, I'll just chime in on the prior story before we let it go. This whole show has been very nostalgic for me for my law school years because when I was in law school in San Francisco, going to Berkeley, you could not get at the Harvard Law Review online; and now you can, so that's a good thing. And also, when I was living in San Francisco and going to Berkeley, you could not have an app tell you where to park; and that was a very bad thing. (Laughs)
Denise: So I'm sure that there are people really rallying around MonkeyParking and hoping that they manage to pull this out somehow or another legally. We'll keep an eye on that.
So our tip of the week is not much of a tip because I don't think we're going to find consensus. Evan sent in another — I won't call it a law review article. This is the humorous law review, right? The Green Bag, it is called.
Evan: In the style of a law review article.
Denise: Yes, in very much the same print and font and format style of a law review. And this particular Green Bag piece has to do with the pronunciation — I'm going to say it the way I say it, and that is certiorari. (Laughs) But —
Evan: What do you say?
Denise: — lots of people say it differently; and there, apparently, is not even agreement on the Supreme Court how to say that word. What the word means is the grant, the permission, the affirmative statement by the Supreme Court that they're going to hear a case. So I just figured I'd poll everyone on their pronunciation. I gave you mine. Evan, what's yours?
Denise: (Laughs) Okay, Evan's just gone to India for us for a moment. How about you, Sonja?
Sonja: I say "certiorari," which apparently has had a small plurality of the justices.
Denise: Yeah. I'm close. I just kind of take two of those syllables and put them together. How about you, Bennet?
Bennet: I usually just say "cert."
Denise: Cert. There you go. Say "cert." That's our tip of the week: Just say "cert," and everyone will know what you mean. If you want to see a really funny rundown of the various approaches of the Supreme Court justices and others, then check out the Green Bag article that's in our discussion points.
Our resource of the week comes from Daily Dot. It's very timely, based on the Riley decision. It's called "What to Do if Police Try to Search Your Phone Without a Warrant"; and points out that it's going to take some time for the memo on Riley to get out, and that the 7.5 million sworn police officers in the U.S. might take some time in realizing that they need a warrant to search your phone during an arrest. And so this tells you what to do. First of all, definitely use that lockdown screen if what you're trying to do is protect your phone, and then the various steps you should go through if someone is trying to search your phone without a warrant, with the most important being, just — if they insist on going forward, there are ways of expressing that you don't consent to that and making a record on it; but if it goes forward anyway, that you should just leave this to the courts to sort out. But I think this is either someone from the EFF or ACLU that's being quoted here, saying, "You're in an arrest situation. You have no power, and you're just going to make the situation worse if you really try and make a scene about it. So you have to wait for the court to fix any injustices that are taking place." This is great advice in the wake of Riley on how to make sure that you're making a record that you don't consent to the search without a warrant, but you're not doing something silly either. So thank you, Daily Dot; I enjoyed that piece.
And I've really, really enjoyed our conversation today on TWIL. So much to cover. We covered much of what we wanted to, not all of it. So hopefully more topics for another day. But it's been such a pleasure having the wonderful insights and wit and intelligence of our panel today. Bennet Kelley, great seeing you again.
Bennet: Thank you.
Denise: Definitely check out Cyber Report. Anything else that people should take a look at, follow along with you? We've been putting your Twitter up the whole show. Internet Law Center is your site. Anything else you want to let us know about?
Bennet: No, just Internet Law Center and [unintelligible] Radio; those are the two sites to check out.
Denise: Great. Thank you so much, Bennet. Sonja, wonderful to meet you. Love your colleagues down at University of Georgia School of Law, and you. Next time I'm in Athens, we'll have to have coffee.
Sonja: Absolutely. Thanks so much for having me; this was fun.
Denise: Really fun having you. Thanks so much for all your insights on the difficult issues that we have gone through today. Evan, phew! This was a big one.
Evan: For sure, yeah. We've been looking for this for a while, but yeah, I don't think — I certainly don't feel let down. It was a fun conversation.
Denise: Oh, yeah.
Evan: And I tell you what, Denise. I mean, if I had to go back in time, I would certainly apply to University of Georgia Law School if they'd let me in.
Denise: I know.
Denise: Right. Absolutely. And I didn't — I stuck these in our discussion points; I'm not mentioning them now in great detail because we're out of time already. But if anyone wants to look at the Law Street Media ratings on top law schools for intellectual property law, we've got those there for you in the discussion points. And University of Georgia should be in there; they're not in the top ten, but they've got to be there somewhere on the list. And University of Santa Clara —
Bennet: Congratulations, [unintelligible].
Bennet: I was saying, congratulations to Eric for being number two.
Denise: Yes, exactly. Professor Goldman at University of Santa Clara. They tied for number two, which is just fantastic. So we're going to get on out of here and let you and everyone else start enjoying their weekends and the rest of our programming here this afternoon at This Week in Tech, at the TWIT network. So we'll just remind you that you can catch the shows after the fact at our website; that's at twit.tv/twil. Also on YouTube at This Week in Law there; and on iTunes and however else you'd like to find shows like this, we're going to be there for you. And come talk to us on Google+ and on Facebook and on Twitter. We love hearing from folks about your thoughts and reactions and insights., the funny things that our discussions make you think about and how you pronounce certiorari. (Laughs. Or however you'd like to say that word. What else? You should email us. We can't promise that we're going to be able to shield confidential sources, but you should email us anyway if you have something that you don't want to just splash out to the world. Evan is firstname.lastname@example.org; I'm email@example.com. And we love hearing from you; we love hearing from you from any and all channels. Suggestions for guests — it's just so wonderful to have the audience that we have and the enthusiasm we have for the topics we discuss. We just love, love, love doing the show. And we're going to do it again next week at 11:00 Pacific Time, 1800UTC. So you should plan on joining us then. Thanks so much.
Evan: Not next week, not next week.
Denise: Oh, that's right, that's right! Next week is 4th of July. Thank you, Evan. So we're taking a break. The whole network is taking a break on the 4th of July. But we'll see you the week after. Here in the United States, have a safe and happy Independence Day; and we will see you on the other side of that! Take care, everyone.