Professional Documents
Culture Documents
Given Time Warners vast holdings in all media [and AOLs power in the
online space], the ordinary citizen, whether a reader, TV viewer, or Internet
user, would be forced to deal with a communications cartel of a magnitude
of power the world has never seen before.1
Assistant Professor, Elon University School of Law. The author acknowledges the
help of Elizabeth Long and Spenser Tatum for outstanding research assistance.
1
Ben H. Bagdikian, Preface, THE MEDIA MONOPOLY xi. (6th ed. 2000).
2
See http://www.reddit.com/r/pics/comments/1cbken/1993 vs 2013/.
402
E. ARMIJO
as an Apple Newton MessagePad, JVC Video Camcorder, Apple PowerBook 160, Motorola DynaTAC cell phone, Polaroid OneStep, Sony Sports
Walkman cassette player, pager, and a digital watch,3 each blocky item
representing its own single function, all colored a slightly lighter or
darker shade of grey but for the bright yellow body, cords and headphones of the Sports Walkman. The bottom photo, by contrast, contained a single product, centered alone in the middle of the frame: a
white iPhone 4.
It is by now de rigeur for scholars and journalists to point out that
the digital revolution has eliminated long-standing barriers to the act
of collecting and disseminating news, and relatedly, has fundamentally
altered journalisms business model. Indeed that premise is one major
theme of the pieces appearing in this issue. The ease-of-use and accessibility of high-speed Internet, mobile technology, and social media now
establish the frame within which all of our public policy and academic
debates concerning communications law and policy take place. To some,
these changes lead to the conclusions that the law should consider almost everything news and almost everyone a journalist.4 Others take
an old-wine-in-new-bottles approach, discussing how the salutary functions of the traditional media can carry over into the online space and
vice versa.5 It is undisputable, however, that reporting, particularly of
worldwide breaking news, has profoundly changed, and that this development has expanded the reach of media and communications law well
beyond our traditional outlets and models.
Relatedly, and speaking of barriers crashing down, it is also accepted
as fact that these changes have reoriented the power structures within
both news organizations themselves and the organizations subjected to
the medias oversight. But as the table of contents to this issue shows,
the arrogation of power has gone in the opposite direction than many
Brian Galindo, 1993 Vs. 2013, BUZZFEED (Apr. 15, 2013), http://www.buzzfeed.com/
briangalindo/1993-vs-2013.
4
See, e.g., Nathan Fenessy, Bringing Bloggers into the Journalistic Privilege Fold, 55
CATH. U. L. REV. 1059 (2006); Melissa A. Troiano, The New Journalism? Why Traditional Defamation Laws Should Apply to Internet Blogs, 55 AM. U. L. REV. 1447, 1451
(2006) (arguing for an amendment to the Communications Decency Act that would hold
bloggers to the same standard of liability for third-party postings as traditional media
defendants, since they act in traditional editorial and publisher roles when editing
such postings); Sunny Woan, The Blogosphere: Past, Present, and Future: Preserving the
Unfettered Development of Alternative Journalism, 44 CAL. W. L. REV. 477, 479 (2008)
(arguing that bloggers should be defined as journalists or not based on the function
that the person is performing); Jared Schroeder, Focusing on How Rather Than on
Whom: Constructing a Process-Based Framework for Interpreting the Press Clause in
the Network-Society Era, infra.
5
See, e.g., C.W. ANDERSON, REBUILDING THE NEWS: METROPOLITAN JOURNALISM IN
THE DIGITAL AGE (2013).
403
404
E. ARMIJO
of actors who can contribute to and participate in the cycle, thereby deteriorating traditional medias power over agenda-setting and wisdomhardening.10 It turns out that Goliath gave David no reason to fear, at
least so long as David had Internet access and a Twitter feed.
To be fair to Bagdikian, however, there has been a consolidation of
power in private hands, though not quite the one he predicted. If everyone is now, or at least could now be, a journalist, and the ability to contribute to the supply chain of news includes everyone worldwide with
a connected smartphone,11 it is also true that the same communications
architecture that has removed barriers to compiling and disseminating
news has placed enormous and unchecked authority in the hands of
information communications technology-providing intermediaries that
can and do exercise significant control over what is read, seen, and
heard. ISPs, application companies, and search service providers retain ultimate authority to decide what digital speech is safe or worthy
enough to carry.12 And the Internet has boosted the power and efficiency
of the governments surveillance apparatus such that any presumptions
that speech online is private are being preempted by the states technological ability to monitor, amass and crunch personal data. Based on
what we now know of the surveillance state, the question of whether
the government can collect information shared online is moot; the debate has already turned to setting the proper limits on its use of that
information.13
Accordingly, the process- and power-related debates we are now having about communications law and policy would have been unrecognizable to us twenty years ago. Not many predicted in 1993 that in just
two decades, the functions of a word processor, camcorder, telephone,
camera, music player, pager and watch could all fit within a single,
palm-sized device or especially that the same device could be connected to millions of other devices and distribute text, photographs or
10
See Rasmus Kleis Nielsen & Kim Christian Schroder, The Relative Importance of
Social Media for Accessing, Finding, and Engaging with News, DIGITAL JOURNALISM
1-2 (2014) (referring to studies that suggest a move from a traditional news cycle
dominated by journalists and professional sources to a more complex information cycle
that integrates ordinary people in the ongoing construction and contestation of news),
http://www.tandfonline.com/doi/pdf/10.1080/21670811.2013.872420.
11
ERIC SCHMIDT & JARED COHEN, THE NEW DIGITAL AGE 50 (Paperback ed. 2014).
12
See, e.g., Jeffrey Rosen, The Delete Squad: Google, Twitter, Facebook
and the New Global Battle Over the Future of Free Speech, NEW REPUBLIC, Apr. 29, 2013, available at http://www.newrepublic.com/article/113045/
free-speech-internet-silicon-valley-making-rules.
13
See The Presidents Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World (rel. Dec. 12, 2013), available at http:
//www.whitehouse.gov/sites/default/files/docs/2013-12-12 rg final report.pdf ; Arthur S.
Hayes, The USPS as an ISP: A Remedy for Online Privacy Concerns, infra.
405
even video in a split second. Prognostications are thus a risky business, but it is the academys role to engage in critical observations, and
to make recommendations for the future based on trends as we view
them. Here are a few of my own.
14
406
E. ARMIJO
16
John Koblin, The End of Libel?, N.Y. OBSERVER, June 9, 2010, available at http:
//observer.com/2010/06/the-end-of-libel/.
17
See id. (discussing Time magazine).
18
Press Release, Media Law Resource Center, Study of Media Trials Analyzes 18 New Cases Tried in 2010 & 2011 (2012), available at http:
//www.medialaw.org/medialaw/images/stories/About MLRC/Press Releases/2012/
MLRC Trials Damages Release 2012.pdf .
19
Lyrissa Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE
L.J. 855, 862-63 (2000). The ability to remain unknown, one commenter has noted,
removes many of the layers of civilized behavior as Internet users realize [or at least
believe] that they can escape responsibility for negligent or abusive postings about other
people. Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges
407
Additionally, rumor, gossip and shaming have taken on new dimensions as they have moved to the Internet; types of speech that were
once local and fleeting when shared in-person now create a permanent record of peoples past transgressions, regardless in some cases
whether those transgressions actually occurred.20 False information, in
other words, is just as Googlable as true facts.
The rise of legally actionable anonymous online speech has also reshaped traditional confidentiality-based litigation. Lawsuits seeking
to compel journalists to disclose their confidential sources have long
been a part of media law.21 But subpoena actions brought by aggrieved
defamation plaintiffs against Internet Service Providers and Web hosts
to reveal the true identities of John Doe anonymous or pseudonymous
commenter-defendants that have defamed the plaintiffs on the ISPs online message boards or in the Web hosts comments section, have grown
exponentially. Courts faced with these subpoenas have sought to balance two sets of rights: the right of the civil plaintiff to the identity
of his defendant such that the plaintiffs defamation action may proceed, versus the First Amendment-derived right of the commenter or
chat room participant to use the Internet to speak anonymously. As a
California court noted:
The use of a pseudonymous screen name offers a safe outlet for the user
to experiment with novel ideas, express unorthodox political views, or
criticize corporate or individual behavior without fear of intimidation or
reprisal. In addition, by concealing speakers identities, the online forum
allows individuals of any economic, political, or social status to be heard
without suppression or other intervention by the media or more powerful
figures in the field.22
to the First Amendment in Cyberspace, 104 YALE L.J. 1639, 1642 (1995) (cited in Lidsky,
supra, at notes 127-28).
20
Daniel J. Solove, Speech, Privacy, and Reputation on the Internet, in THE OFFENSIVE
INTERNET: SPEECH, PRIVACY, AND REPUTATION 16 (S. Levemore & M. Nussbaum eds.,
2010). See also Cass Sunstein, Believing False Rumors, in THE OFFENSIVE INTERNET,
supra at 91.
21
See, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972); Lee v. Dept of Justice, 428 F.3d
299 (D.C. Cir. 2005); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir.
2005).
22
Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1162 (2008). See also Dendrite Intl v. John
Doe No. 3, 774 A.2d 756 (N.J. 2001).
408
E. ARMIJO
23
See McIntyre v. Ohio Elections Commn, 514 U.S. 334, 341-42 (1995).
Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451, 460 (Fla. Dist. Ct. App. 1999)
(quoted in Krinsky).
25
Of course, this begs the question of whether a plaintiff should be able to allege that
the anonymous review is in effect a defamatory fiction that is, that the commenter
did not use or visit the plaintiff s business at all and thus the identity of the reviewers
should be revealed so as to confirm that allegation. In such a case, if the plaintiff can
support a claim with evidence demonstrating the reviewers false representation with
respect to having been plaintiff s customer, the court will likely order that the reviewers
identity be revealed. See Yelp v. Hadeed Carpet Cleaning, Inc., 752 S.E.2d 554 (Va. Ct.
App. 2014) (ordering Yelp to turn over IP addresses for seven anonymous authors of
negative reviews of plaintiff s business when plaintiff alleged that the reviews authors
had in fact never used his business at all).
26
See, e.g., Loftus v. Nazari, 2014 WL 1908812, at 2-3 (E.D. Ky. May 13, 2014) (where
doctor alleged that former patient defamed him with posts on opinion Web sites concerning undesirable side effects she was suffering after surgery, [I]t must be taken into
account that the statements by [patient] were posted on opinion websites; therefore,
the natural tendency would be to infer that they are opinion). International digital
publication has raised a whole new set of defamation-related problems; though the
Times Company reported no active domestic lawsuits, a handful were pending abroad,
24
409
brought by foreign plaintiffs who claimed to have been defamed by online versions of
Times newspapers. See Koblin, The End of Libel?, supra note 16.
27
740 F.3d 1284, 1293-94 (9th Cir. 2014). See also Unelko Corp. v. Rooney, 912 F.2d
1049, 1053 (9th Cir. 1990).
28
Suzanne LaBarre, Why Were Shutting Off Our Comments, POPULAR SCIENCE, Sept. 24, 2013, available at http://www.popsci.com/science/article/2013-09/
why-were-shutting-our-comments.
29
Id. (citing Dominique Brossard & Dietram Scheufele, This Story Stinks, N.Y.
TIMES, Mar. 2, 2013, available at http://www.nytimes.com/2013/03/03/opinion/sunday/
this-story-stinks.html? r=0); Ashley Anderson, Dominique Brossard & Dietram
Scheufele, et al., The Nasty Effect: Online Incivility and Risk Perceptions of Emerging
Technologies, 19 J. OF COMPUTER-MEDIATED COMM. 373 (2013).
410
E. ARMIJO
of the scope of Web site immunity for third-party comments under the
Communications Decency Acts Section 23030 might play a factor in
Web sites decisions with respect to hosting user comments sections on
their Web pages. For example, while soliciting, screening or editing user
comments to promote civility would not result in a loss of immunity,
substantial alterations of user-provided content or neglecting to remove
defamatory user-provided content after promising to do so might.31 Any
adverse speech-related effects of a decision to forego reader comments,
however, are ameliorated by the presence of the alternative fora for
communication of opinion provided by the Internet. If Popular Science
has decided not to host debates about its articles on its own Web site,
there are plenty of other virtual sandboxes for those debaters to play in.
Privacy: Preserving the Boundaries of Reasonable
Expectation in Online Spaces
The long-standing tort of public disclosure of private facts, which permits a plaintiff to seek damages from a defendant who publicizes a true
but private fact about that plaintiff, turns on the concept of reasonable expectation of privacy.32 The reasonable expectation test, imported
from the Fourth Amendment government search context, asks whether
an individual has a reasonable expectation of privacy in the purportedly
private fact.33 If not, the tort cannot provide damages for the facts disclosure. A corollary to the reasonable expectation principle, also Fourth
Amendment-derived, is the Third Party Doctrine; in the online context,
47 U.S.C. 230 (1996) (No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information provided by another
information content provider.).
31
See, e.g., Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (Section 230 immunity not
waived when administrator selected, edited and posted user emails to listserve and
Web site.); Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004)
(Soliciting user content does not waive Section 230 immunity.); Doanto v. Moldow, 865
A.2d 711 (N.J. Super. Ct. 2005) (exercising editorial control over comments section such
as deleting offensive messages and language within messages did not waive Section 230
immunity). But see, e.g., Barnes v. Yahoo, Inc., 570 F.3d 1096 (9th Cir. 2009) (Section
230 did not shield Yahoo!s failure to remove defamatory content after promising to do
so from a promissory estoppel claim.); Fair Housing of Council of San Fernando Valley
v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) (rejecting Section 230 immunity when
Web site created forms for users to provide illegal housing preferences in their online
advertisements).
32
See RESTATEMENT (SECOND) OF TORTS 652D (1977).
33
See Katz v. United States, 389 U.S. 347, 351 (1967). The text of the Restatement formulates the reasonableness question slightly differently, asking whether the disclosure
would be highly offensive to a reasonable person, however, the texts interpretive comment shows that the highly offensive inquiry protects only against disclosures that
are unreasonable . . . to the ordinary reasonable man. See RESTATEMENT (SECOND)
OF TORTS 652D, cmt c.
30
411
34
See Smith v. Maryland, 442 U.S. 735, 744 (1979). See also United States v. Polizzi, 549
F. Supp. 2d 308, 390 (E.D.N.Y. 2008) (No reasonable expectation of privacy in keeping
ones identity secret when IP address is provided to ISP pursuant to receiving Internet
access.).
35
949 N.Y.S.2d 590, 597 (N.Y. Crim. Ct. 2012). See also Fawcett v. Altieri, 960 N.Y.S.2d
592 (N.Y. Sup. Ct. 2013) (Plaintiff s social media postings were relevant to defendants
contest of claimed actual damages resulting from defendants alleged battery.); Romano
v. Steelcase Inc., 907 N.Y.S.2d 650 (Sup. Ct. 2010) (same; The privacy concerns are
far less where the beneficiary herself chose to disclose the information, especially
where Facebook and MySpace terms of service required consent to the sharing of posted
material.).
36
Tara M. Breslawski, Privacy in Social Media: To Tweet or not to Tweet?, 29 TOURO
L. REV. 1283, 1291 (2013)) (quoting Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387,
388 (E.D. Mich. 2012)). See also Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 651 (Sup.
Ct. 2010) (rejecting claim that historical Facebook and MySpace pages were private,
because, [T]he privacy concerns are far less where the beneficiary herself chose to
disclose the information).
412
E. ARMIJO
Arguing that the Third Party Doctrine should not apply to some online
communications has been a cottage industry for Internet scholars,37 but
it is difficult to see why these cases are not correctly decided, or that the
law on this issue should change. The reasonable expectation of privacy
test has never concerned itself with the scope of the disclosure to the
third party. It matters not, for example, whether a phone company did in
fact share my phone records with another party without my knowledge
or consent, or whether the phone company is the kind of third party
objectively more likely to so share; it only matters whether it might
even if I believe the confidence [I] placed in the third party [to
not disclose] will not be betrayed.38 If the third party might indeed
disclose, then my expectation in the privacy of those records will not
be reasonable. So, too, with Twitter or Facebook; if I share a tweet or
photo with a small group of followers or friends, nothing keeps those
followers or friends from sharing that tweet or photo with as many
other individuals as they like, either online or off.39
The application of the Third Party Doctrine to online spaces might be
a negative development for all of us as participants in the networked
world, but it is certainly good news for journalists.40 Nearly all of us
37
See, e.g., Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN. L.
REV. 1193, 1198 (1998); Andrew Selbst, Contextual Expectations of Privacy, 35 CARDOZO
L. REV. 643 (2013).
38
United States v. Miller, 425 U.S. 435, 443 (1976); Polizzi, 549 F. Supp. 2d, at 391
(That a person lacks knowledge that the third party would disclose the information . . .
is of limited constitutional significance.) (citing Smith, 442 U.S. at 745).
39
A different result would hold, however, as to the contents of private communications
transferred electronically, namely email, even though the delivery of such communications requires a third party. See Orin Kerr, Applying the Fourth Amendment to the
Internet: A General Approach, 62 STAN. L. REV. 1005, 1029 (2010) (distinguishing between content and non-content when assessing whether an expectation of privacy in
online communications is reasonable).
40
It is certainly true that the institutional press has expressed concern over the development of privacy in the online space in the form of, for example, the European right to
be forgotten. See, e.g., Ordering Google to Forget, N.Y. TIMES, May 13, 2014, available
at http://www.nytimes.com/2014/05/14/opinion/ordering-google-to-forget.html. The
court in the case there, Costeja v. Google (Case C-131/12, May 13, 2014), http://curia.
europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang
=EN&mode=lst&dir=&occ=first&part=1&cid=40344, held that an individual
had the right to demand that a search engine remove from its search results
links to articles that harmed the individuals reputation and concerned truthful
events in the individuals past. Notably, however, the decision expressly exempted
the articles themselves from its holding, on the ground the articles were journalistic in nature. The decisions effects on journalists free speech thus remain
to be seen. See id. (text of opinion). The media have claimed that the decision
harms free expression by interfering with the online accessibility of such truthful
information. See Ordering Google, supra; The Right to Be Forgotten? Forget It,
CHICAGO TRIBUNE, May 26, 2014, available at http://articles.chicagotribune.com/
2014-05-26/opinion/ct-internet-google-forgotten-edit-0526-bd-20140526 1 search-engi
nes-european-court-internet. But no journalists right to speak about public or private
413
speak via social media on a range of issues, and the Third Party Doctrine treats those statements as freely available for use in subsequent
reporting for example, as several aides to Rhode Island Senator Sheldon Whitehouse were shamed into learning in 2011 after initially claiming that their tweets were off the record.41 And when the traditional
reporter-source relationship no longer limits a journalists interactions
with the principals on the reporters beat, an uncooperative story subject
on a matter of public interest no longer necessarily gets the last word.
Networked newsgathering has expanded the reach of the professional
press as well as the citizen journalist.42
Journalism is already adapting its practices and ethics to the presumed lack of privacy in social media use. Both NPR and the Los Angeles Times recommend that their journalists observe[] online content
without actively participating in it.43 NPRs Ethics Guidelines permit
its reporters to follow or friend a political party or advocacy group to
keep up on what that party or group is doing.44 And the prevalence
of social media use opens up difficult-to-reach news events to reportorial inquiry. For example, if someone is sharing information from an
ongoing situation that could be perceived as hazardous, the Associated
Press now encourages its reporters to monitor their posts and treat
them as news tips as you try to tell the story of whats happening.45
Similarly, AFP urges its journalists to use social networks to engage in
the real time news process, tap into new sources and identify trends.46
CONCLUSION
Information communications technology has irrevocably changed the
newsgathering and distribution business. More news is created, distributed and consumed than ever before, yet, because of that very fact,
414
E. ARMIJO
47
See Jack Kopstein, The Valiant Musicians: Wallace Hartley and the Titanic
Ships Orchestra, WORLDMILITARYBANDS.COM, http://www.worldmilitarybands.com/
the-valiant-musicians/ (as water rushed onboard the Titanic, Wallace Hartley, the onboard bands conductor, [V]ery quickly realized that he and the band must play to calm
the passengers by playing up-tempo ragtime and waltzes. . . . With the end being very
close, Hartley called to his comrades that they may try and save themselves. None chose
to do so and they remained together on the boat deck until the slope of the ship did not
enable them to continue playing.). For a more robust approach to protecting news as
intellectual property, compare VICTORIA SMITH EKSTRAND, NEWS PIRACY AND THE HOT
NEWS DOCTRINE 50-76 (2005), which details the Associated Presss efforts in the early
twentieth century to control the parasitic distribution and appropriation of its news
by competitors.
415
48
See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).