So to both protect citizens and at the same time allow disruptive technology to flourish, let’s get government to stay on top of new developments in a smart, bipartisan, forward-leaning way. That was a joke.
Kevin Maney
Information is important. Correct information is important-er, ask Ashton. 
Here you will find laws and legal cases that are instrumental in understanding the arc of this class. They are organized by course theme with the laws you must know and then the legal cases. Some of them you will agree with….some of them you won’t. Think about what is reflected in these laws. Who’s values? Who’s opinions? How does R vs. Dudley and Stephens make you feel?
Not every topic in this class is very dense with analyzing legal cases and precedence. Some of the course is indeed about culture and, you guessed it, ~~technology~~. This is not the class. Go to class. Eat a cupcake.
Every section will start with a particular topic (e.g. copyright, free speech, etc.) and immediately below that will be the actual relevant law or legal standards and a reference guide of legal cases.
If you click on the case, you will be redirected to a new page with much more information about that case, including background and opinions.
Technology
Computer Fraud and Abuse Act
Very necessary! Protection is nice but the breadth and vagueness of this Act is a lil’ troubling…especially when it comes to punishments. Here is what is says:
(a)Whoever—
(1)having knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
(2)intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—(A)information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n)[1] of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);(B)information from any department or agency of the United States; or (C)information from any protected computer;
(3)intentionally, without authorization to access any nonpublic computer of a department or agency of the United States, accesses such a computer of that department or agency that is exclusively for the use of the Government of the United States or, in the case of a computer not exclusively for such use, is used by or for the Government of the United States and such conduct affects that use by or for the Government of the United States;
(4)knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period;
(5)(A)knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;(B)intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or(C)intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.[2]
(6)knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information through which a computer may be accessed without authorization, if—(A)such trafficking affects interstate or foreign commerce; or (B)such computer is used by or for the Government of the United States;[3]
(7)with intent to extort from any person any money or other thing of value, transmits in interstate or foreign commerce any communication containing any—(A)threat to cause damage to a protected computer;(B)threat to obtain information from a protected computer without authorization or in excess of authorization or to impair the confidentiality of information obtained from a protected computer without authorization or by exceeding authorized access; or(C)demand or request for money or other thing of value in relation to damage to a protected computer, where such damage was caused to facilitate the extortion;shall be punished as provided in subsection (c) of this section.
Cases
U.S. v. Morris (1991)
U.S. v. Nosal (2012 en banc) (2016 panel)
Copyright
Let’s start with Article I, Section 8 of the Constitution. Article I describes the design of Congress. All you need to know from this right now is that, according to Section 8, the way they collect and lay ways to collect money have to be uniform throughout the US with a number of goals in mind, one of them is the following:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Constitution Article I, Section 8
Now we turn to the Copyright Law of the United States, “Title 17.”
Pay special attention to Sections 102, 103, 105, and 106 (104 isn’t super important for right now and very, very long). If you want definitions they will be located at the very beginning in Section 101.
102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
103. Subject matter of copyright:
Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
105. Subject matter of copyright: United States Government works
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public 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 works, pantomimes, and pictorial, 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.
This provides more background on digital copyright and the music marketplace.
DMCA
There is also this very neat, super cool thing called the DMCA (Digital Millennium Copyright Act).
DMCA anti-circumvention bans making, distributing and using technologies that allow people to “circumvent,” or break DRM and other protections used to lock down copyrighted works.
The Digital Millennium Copyright Act (DMCA) was signed into law by 1 President Clinton on October 28, 1998. The legislation implements two 1996 World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA also addresses a number of other significant copyright-related issues.
The DMCA is divided into five titles:
I) “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.
II) The “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.
III) The “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.
IV) This contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.
V) The “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.
But…what is that DRM thingy?
DRM stands for Digital Rights Management. It’s a category of technologies that try to control what you can/can’t do with media that you have purchased. So when your digital textbook won’t let you copy/paste text, that’s an example of DRM technology. DRM has been strengthened by the DMCA- which seeks to outlaw bypassing DRM. The Electronic Frontier Foundation is a wonderful place to learn more about the implications of this.
No Electronic Theft Act & Piracy
This is more to do with the piracy side of copyright. One of the case laws below exposed a loophole in copyright law (LaMacchia Loophole). The No Electronic Theft (NET) Act – Amends Federal copyright law to define “financial gain” to include the receipt of anything of value, including the receipt of other copyrighted works.
It…
Sets penalties for willfully infringing a copyright: (1) for purposes of commercial advantage or private financial gain; or (2) by reproducing or distributing, including by electronic means, during any 180-day period, one or more copies of one or more copyrighted works with a total retail value of more than $1,000. Provides that evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.
Extends the statute of limitations for criminal copyright infringement from three to five years.
Revises Federal criminal code provisions regarding criminal copyright infringement to provide for a fine and up to five years’ imprisonment for infringing a copyright for purposes of commercial advantage or private financial gain, by reproducing or distributing, including by electronic means, during any 180-day period, at least ten copies or phonorecords of one or more copyrighted works which have a total retail value of more than $2,500.
Provides for: (1) up to three years’ imprisonment and fines in infringement cases described above (exclusive of commercial gain intent considerations); (2) up to six years’ imprisonment and a fine for a second or subsequent felony offense under (1); and (3) up to one year’s imprisonment and a fine for the reproduction or distribution of one or more copies or phonorecords of one or more copyrighted works with a total retail value of more than $1,000.
Requires, during preparation of the presentence report in cases of criminal copyright infringement, unauthorized fixation and trafficking of live musical performances, and trafficking in counterfeit goods or services, that victims of the offense be permitted to submit, and the probation officer receive, a victim impact statement that identifies the victim and the extent and scope of the victim’s injury and loss, including the estimated economic impact of the offense on that victim.
Directs the U.S. Sentencing Commission to ensure that the applicable guideline range for a defendant convicted of a crime against intellectual property is sufficiently stringent to deter such a crime and adequately reflects consideration of the retail value and quantity of items with respect to which the crime against intellectual property was committed.
A quick note on P2P networks: P2P means peer-to-peer. In a peer-to-peer network, the peers are computer systems connected through the internet where files can be directly shared without a central server. Every computer on a P2P system becomes a file server AND a client. Some examples of P2P systems include Napster and BitTorrent. File sharing itself is legal BUT file sharing copyrighted material is super duper not.
Cases
Feist v. Rural Telephone (1991)
Wheaton v. Peters (1834)
Sony v. Universal AKA Betamax Case (1983)
American Broadcasting Companies, Inc. v. Aereo, Inc. (2014)
Fox News Network, LLC v. TVEyes, Inc. (2014)
Capitol Records. v. ReDigi (2018)
US v. LaMacchia & LaMacchia Loophole (1994)
Arista v. Limewire (2010)
Capitol Records, Inc. v. Thomas-Rasset (2012)
Sony BMG Music Entertainment et al. v. Tenenbaum (2011)
Lexmark International, Inc. vs. Static Control Components, Inc. (2004)
Fair Use
Here is the next important section of US Copyright Law: Section 107. This describes Fair Use, an affirmative defense to copyright infringement.
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Cases
Swatch Group v. Bloomberg (2014)
Seltzer v. Green Day (2013)
Warner Bros. v. RDR Books (2008)
DC Comics v. Towle (2015)
Lenz v. Universal (2015)
Campbell v. Acuff-Rose Music (1994)
Author’s Guild v. Google (2015)
Perfect 10, Inc. v. Amazon.com, Inc. (2007)
Cariou v. Prince (2013) plus the 2011 business
Bridgeport v. Dimension Films (2005)
VMG Salsoul v. Ciccone (2016)
Dr. Seuss v. Comicmix (2017)
Hosseinzadeh v. Klein (2017)
Brownmark Films LLC v. Comedy Partners (2012)
Free Speech
I mean…you should know where this comes from. The First Amendment to the Constitution in the Bill of Rights lays out freedom of speech.
Amendment I (1): Freedom of religion, speech, and the press; rights of assembly and petition Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Cases
New York Times Co. v. Sullivan (1964)
Reno v. ACLU (1997)
Ashcroft v. ACLU (2002) (2004)
Batzel v. Smith (2003)
FCC v. Fox (2009)
FCC v. Fox pt. II (2012)
Bland v. Roberts (2013)
Defamation & Hate Speech
Defamation
Defamation is an untrue thing that hurts the subject of the statement. There are 4 prongs of defamation:
To create liability for defamation there must be:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher (with respect to the act of publication); and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
Libel is written defamation, slander is spoken orally.
Communications Decency Act (U.S.C. §230)
Congress has some findings and observations about the internet and interactive computer services in Section (a). It’s not policy, but you can read about it here. Their policy starts in Section (b).
(b) Policy It is the policy of the United States— (1)to promote the continued development of the Internet and other interactive computer services and other interactive media; (2)to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3)to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4)to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5)to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(c)Protection for “Good Samaritan” blocking and screening of offensive material. (1)Treatment of publisher or speaker 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. (2)Civil liability No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
(d)Obligations of interactive computer service A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
The last 2 parts of this act state that the CDA has no effect on criminal law, intellectual property law, state law, communications privacy law or sex trafficking law and provide definitions.
U.S.C §875
This code, describing interstate communications, will provide some useful background for this section. Unfortunately, intent has notably been left out of some of these.
(a)Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.
(b)Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both.
(c)Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
(d)Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.
Senate Bill 606 (California)
SB 606, the Paparazzi-Deterrent Bill, increases the possible punishments for harassing celebrities’ kids and clears up what harassing means:
This bill would make a violation of the above provisions punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding $10,000, or by both that fine and imprisonment for a first conviction. For a 2nd conviction, the bill would require a fine not exceeding $20,000 and imprisonment in a county jail for a period of not less than 5 days but not exceeding one year. For a 3rd or subsequent conviction, the bill would require a fine not exceeding $30,000 and imprisonment in a county jail for a period of not less than 30 days but not exceeding one year. The bill would specify that harassment means knowing and willful conduct directed at a specific child or ward that seriously alarms, annoys, torments, or terrorizes the child or ward, and that serves no legitimate purpose, including, but not limited to, that conduct occurring during the course of any actual or attempted recording of the child’s or ward’s image or voice without the written consent of the child’s or ward’s parent or legal guardian, by following the child’s or ward’s activities or by lying in wait. The bill would specify that, upon a violation of the above provisions, a parent or legal guardian of an aggrieved child or ward may bring a civil action against the violator on behalf of the child or ward for specified remedies. The bill would additionally provide that the act of transmitting, publishing, or broadcasting a recording of the image or voice of a child does not constitute commission of the offense.
SHIELD Act of 2019
Also referred to as the NY Revenge Porn Bill, the Stopping Harmful Image Exploitation and Limiting Distribution Act exists to, “amend title 18, United States Code, to provide that it is unlawful to knowingly distribute private intimate visual depictions with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.”
Cases
Barrett v. Rosenthal (2006)
Doe v. Ciolli (2008)
D.C. v. R.R. (2010)
Kinney v. Barnes (2014)
Elonis v. U.S. (2015)
The People v. Marquan (2014)
Palin v. NY Times (2019)
Cohen v. Google (2009)
Censorship
The legal basis here is again the First Amendment. Unfortunately, people like saying things that aren’t cool sometimes- but how is that reconciled with free speech and where are the lines drawn? Important to understanding some of the American case law in censorship is a background in things we don’t really like to talk about. This takes very different forms around the world. The Great Firewall of China is a prime example of this, but their efforts are not achieved in isolation (many technologies supporting their censorship come from American companies like CISCO).
Child Pornography Prevention Act of 1996
This act defines “child pornography” to mean any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where–(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; or (C) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.”. (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct; and
Cases
Miller v. California (1973)
New York v. Ferber (1982)
U.S. v. Ortiz-Graulau (2008)
Ashcroft v. Free Speech Coalition (2002)
New York Times Co. v. U.S. (1971) AKA Pentagon Papers Case
Privacy + Search & Seizure
Fourth Amendment
The big guy here is the Fourth Amendment which says…
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Privacy Protection Act of 1980
A) Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if–
(1)There is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of Title 18, or section 2274, 2275 or 2277 of this title, or section 783 of Title 50); or
(2)There is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.
Beyond just work documents, government officers/employees can’t do what’s described in section A) to other documentary materials, either (that makes up Section B) of the Act).
Cases
Katz v. United States (1967)
Kyllo v. United States (2001)
United States v. White (1971)
U.S. v. Place (1983)
California v. Ciraolo (1986)
U.S. v. Raymonda (2015)
Tennessee v. Garner (1985)
Bryan v. McPherson (2010)
Scott v. Harris (2007) with necessary context
U.S. v. Jones (2012)
Hoffa v. U.S. (1966) with some more necessary context
Los Angeles v. Patel (2014)
The People of the State of NY v. Harris (2012)
Leon v. Target Corporation et al. (2015)
Rosario v. Clark County School District et al. (2013)
Ehling v. Monmouth-Ocean Hospital Service Corp. et al. (2013)
Net Neutrality
For the most part, understanding net neutrality will come from understanding how communication systems work in the US. The law here will provide you more context for how silly the debate on this subject is. There aren’t many cases here for that reason.
Communications Act of 1934
The classification of the internet as a common carrier providing a telecommunications service comes from Title II of the Communications Act of 1934.
COMMON CARRIER.—The term ‘‘common carrier’’ or ‘‘carrier’’ means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Act; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.
TELECOMMUNICATIONS SERVICE.—The term ‘‘telecommunications service’’ means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
Telecommunications Act of 1996
This act amended the Communications Act of 1934 and made a very ImPoRTaNt distinction between 2 categories of providers: Title I information service and Title II telecommunications service. In 2002, the internet was classified as an information service, in 2015 it was re-classified a telecommunications service, and in 2017 that classification was repealed.
Here, the term ”information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service .
Conversely, the term ”telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
Save the Internet Act of 2019
This act exists to “restore the open internet order of the Federal Communications Commission.” It has been passed in the House and must now make its way through the Senate & president to become law.
Cases
Comcast v. FCC (2010)
Verizon v. FCC (2013)
Yale Law Tech 