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The Limits of Free Speech

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Paul Overbee, MJLST Editor

A large portion of society does not put much thought into what they post on the internet. From tweets and status updates to YouTube comments and message board activities, many individuals post on impulse without regard to how their messages may be interpreted by a wider audience. Anthony Elonis is just one of many internet users that are coming to terms with the consequences of their online activity. Oddly enough, by posting on Facebook Mr. Elonis took the first steps that ultimately led him to the Supreme Court. The court is now considering whether the posts are simply a venting of frustration as Mr. Elonis claims, or whether the posts constitute a "true threat" that will direct Mr. Elonis directly to jail.

The incident in question began a week after Tara Elonis obtained a protective order against her husband. Upon receiving the order, Mr. Elonis posted to Facebook, "Fold up your PFA [protection-from-abuse order] and put it in your pocket [...] Is it thick enough to stop a bullet?" According the Mr. Elonis, he was trying to emulate the rhyming styles of the popular rapper Eminem. At a later date, an FBI agent visited Mr. Elonis regarding his threatening posts about his wife. Soon after the agent left, Mr. Elonis again returned to Facebook to state "Little agent lady stood so close, took all the strength I had not to turn the [expletive] ghost. Pull my knife, flick my wrist and slit her throat."

Due to these posts, Mr. Elonis was sentenced to nearly four years in federal prison, and Elonis v. United States is now in front of the Supreme Court. Typical state statutes define these "true threats" without any regard to whether the speaker actually intended to cause such terror. For example, Minnesota's "terroristic threats" statute includes "reckless disregard of the risk of causing such terror." Some states allow for a showing of "transitory anger" to overcome a "true threat" charge. This type of defense arises where the defendant's actions are short-lived, have no intent to terrorize, and clearly are tied to an inciting event that caused the anger.

The Supreme Court's decision will carry wide First Amendment implications for free speech rights and artistic expression. A decision that comes down harshly on Mr. Elonis may have the effect of chilling speech on the internet. The difference between a serious statement and one that is joking many times depends on the point of view of the reader. Many would rather stop their posting on the internet instead of risk having their words misinterpreted and charges brought. On the other hand, if the Court were to look towards the intent of Mr. Elonis, then "true threat" statutes may lose much of their force due to evidentiary issues. A decision in favor of Mr. Elonis may lead to a more violent internet where criminals such as stalkers have a longer leash in which to persecute their victims. Oral argument on the case was held on December 1, 2014, and a decision will be issued in the near future.

Sen "Alex" Wang, MJLST Staff Member

In Volume 13 Issue 1 of the Minnesota Journal of Law, Science & Technology, Ira P. Robbins called for special attention for social-networking evidence used in civil and criminal litigation and proposed an authorship-centric approach to the authentication of such evidence. In recent years, social-networking websites like Facebook, MySpace, and Twitter have become an ingrained part of our culture. However, at least as it appears to Robbins, people are stupid with regard to their online postings since they document their every move no matter how foolish or incriminating on social-networking sites. The lives and careers of not only ordinary citizens, but also lawyers, judges, and even Congress members have been damaged by their own social-networking postings.

Social-networking sites are designed to facilitate interpersonal relationships and information exchanges, but they have also been used to harass, intimidate, and emotionally abuse or bully others. With no effective check on fake accounts or false profiles, the anonymity of social-networking sites permits stalkers and bullies to take their harmful conduct above and beyond traditional harrying. The infamous Lori Drew and Latisha Monique Frazier cases provide excellent examples. Moreover, hackers and identity thieves have also taken advantages of the personal information posted on social-networking sites. Thus, Robbins argued that the growth in popularity of social-networking sites and the rising number of fake accounts and incidents of hacking signal that information from social-networking sites will begin to play a central role in both civil and criminal litigation.

Often unbeknownst to the social-networking user, postings leave a permanent trail that law-enforcement agents and lawyers frequently rely upon in crime solving and trial strategy. Robbins argued that the ease with which social-networking evidence can be altered, forged, or posted by someone other than the owner of the account should raise substantial admissibility concerns. Specifically, Robbins stated that social-networking postings are comparable to postings on websites rather than e-mails. Thus, the authentication of social-networking evidence is the critical first step to ensuring that the admitted evidence is trustworthy and, ultimately, that litigants receive a fair and just trial.

Robbins, however, further argued that the current judicial approaches to authentication of such evidence have failed to require rigorous showings of authenticity despite the demonstrated unreliability of information on social-networking sites. In the first approach, the court effectively shirks its gate-keeping function, deflecting all reliability concerns associated with social-networking evidence to the finder of fact. Under the second approach, the court authenticates a social-networking posting by relying solely on testimony of the recipient. The third approach requires testimony about who, aside from the owner, can access the social-networking account in question. With the fourth approach, the court focuses on establishing the author of a specific posting but failed to provide a thorough framework.

As a solution, Robbins proposed an authorship-centric approach that instructs courts to evaluate multiple factors when considering evidence from social-networking websites. The factors fall into three categories: account security, account ownership, and the posting in question. Although no one factor in these categories is dispositive, addressing each will help to ensure that admitted evidence possesses more than a tenuous link to its purported author. For account security, the inquiry should include at least the following questions: (1) Does the social-networking site allow users to restrict access to their profiles or certain portions of their profiles? (2)Is the account that was used to post the proffered evidence password protected? (3) Does anyone other than the account owner have access to the account? (4) Has the account been hacked into in the past? (5) Is the account generally accessed from a personal or a public computer? (6) How was the account accessed at the time the posting was made? As to account ownership, a court should address, at a minimum, the following key questions: (1) Who is the person attached to the account that was used to post the proffered evidence? (2) Is the e-mail address attached to the account one that is normally used by the person? (3) Is the alleged author a frequent user of the social-networking site in question? Finally, the court should ask at least these questions regarding the posting in question: (1) How was the evidence at issue placed on the social-networking site? (2) Did the posting at issue come from a public or a private area of the social-networking website? (3) How was the evidence at issue obtained from the website?

This authorship-centric approach properly shifts a court's attention from content and account ownership to authorship, it underscores the importance of fairness and accuracy in the outcome of judicial proceedings that involve social-networking evidence. In addition, it fit within the current circumstantial-evidence authentication framework set out by Federal Rules of Evidence 901(b)(4) and will not require the courts to engage in a more exhaustive inquiry than is already required for other types of evidence.

Blake Vettel, MJLST Staff Member

In Volume 14 Issue 2 of the Minnesota Journal of Law, Science & Technology, Mariateresa Maggiolino and Marie Lillá Montagnani proposed a framework for standardized terms and conditions for Open Patenting. This framework set forth a standard system for patent holders to license their patents in order to encourage open innovation, in a way that was easy to administer for patent holders of all sizes. Maggiolino and Montagnani argued for an open patenting scheme in which the patent owner would irrevocably spread their patented knowledge worldwide, based on non-exclusive and no-charge licensing. Futhermore, the licensing system would be centrally operated online and allow the patentee to customize certain clauses in the licensing agreement; while maintaining a few compulsory clauses such as a non-assertion pledge that would keep the license open.

On June 12, 2014 Elon Musk, CEO of Tesla Motors, shocked the business world by announcing via blog post that "Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology." Musk described his reasoning for opening Tesla's patents for use by others as a way to encourage innovation and growth within the electric car market, and depicted Tesla's true competition as gasoline cars instead of electric competitors. By allowing use of their patented technology, Tesla hopes to develop the electric car market and encourage innovation. Some commentators have been skeptical about the altruistic motive behind releasing the patents, arguing that it may in fact be a move intended to entice other electric car manufacturers to produce cars that are compatible with Tesla's patented charging stations in an effort to develop the network of stations around the country.

However, Musk did not unequivocally release these patents; instead he conditioned their subsequent use upon being in "good faith." What constitutes a good faith use of Tesla's technology is not clear, but Tesla could have instead opted for a standardized licensing system as proposed by Maggiolino and Montagnani. A clear standardized licensing scheme with compulsory clauses designed to encourage free movement of patented technology and spur innovation may have been more effective in promoting use of Tesla's patents. An inventor who wants to use Tesla's patents may be hesitant under Musk's promise not to initiate lawsuits, where he could be much more confident of his right to use the patented technology under a licensing agreement. The extent to which Tesla's patents will be used and their effect on the car market and open innovation is yet to be seen, as is the true value of Tesla's open innovation.

Nia Chung, MJLST Staff

Cyberbullying comes in varying forms. Online outlets with user identification features such as Facebook and MySpace give third party attackers a platform to target individuals but remain identifiable to the victim. The transparency of identification provided on these websites allows victims the ability of possible redress without involving the Internet Service Providers (ISPs).

In February 2014, Bryan Morben published an article on cyberbullying in volume 15.1 of the Minnesota Journal of Law, Science and Technology. In that article Mr. Morben wrote that Minnesota's new anti-cyberbullying statute, the "Safe and Supportive Minnesota Schools Act" H.F. 826 would "reconstruct the Minnesota bullying statute and would provide much more guidance and instruction to local schools that want to create a safer learning environment for all." Mr. Morben's article analyzes the culture of cyberbullying and the importance of finding a solution to such actions.

Another form of cyberbullying has been emerging, however, and state initiatives such as the Safe and Supportive Minnesota Schools Act may prompt Congress to revisit current, outdated, federal law. This form of cyberbullying occurs on websites that provide third parties the ability to hide behind the cloak of anonymity to escape liability for improper actions, like 4chan and AOL.

On September 22, 2014, British actress Emma Watson delivered a powerful U.N. speech about women's rights. Less than 24 hours later, a webpage titled "Emma You Are Next" appeared, displaying the actress's face next to a countdown, suggesting that Ms. Watson would be targeted this Friday. The webpage was stamped with the 4chan logo, the same entity that is said to have recently leaked celebrity photos of actresses including Jennifer Lawrence, this past summer. On the same website, one anonymous member responded to Ms. Watson's speech by stating "[s]he makes stupid feminist speeches at UN, and now her nudes will be online." Problematically, the law provides no incentive for such ISPs to remove such defamatory content because they are barred from liability by a federal statute. The Communications Decency Act, 47 U.S.C. § 230, provides, "[n]o 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." Essentially, this provision provides ISPs immunity from tort liability for content or information generated on a user-generated website. Codified in 1996, initially to regulate pornographic material, the statute added sweeping protection for ISPs. However, 20 years ago, the internet was relatively untouched and had yet to realize its full potential.

Courts historically have applied Section 230 broadly and have prevented ISPs from being held liable for cyberbullying actions brought from victims of cyberbullying on its forum. For example, the Ninth Circuit upheld CDA immunity for an ISP for distributing an email to a listserv who posted an allegedly defamatory email authored by a third party. The Fourth Circuit immunized ISPs even when they acknowledged that the content was tortious. The Third Circuit upheld immunity for AOL against allegations of negligence because punishing the ISP for its third party's role would be "actions quintessentially related to a publisher's role." Understandably, the First Amendment provides the right to free exchange of information and ideas, which gives private individuals the right to anonymous speech. We must ask, however, where the line must be drawn when anonymity serves not as a tool to communicate with others in a public forum but merely as a tool to bring harm to individuals, their reputations and their images.

In early April of this year, the "Safe and Supportive Minnesota Schools Act was approved and officially went into effect. Currently, http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf have anti-cyberbullying statutes in place, demonstrating positive reform in keeping our users safe in a rapidly changing and hostile online environment. Opinions from both critics and advocates of the bill were voiced through the course of the bill's passing, and how effectively Minnesota will apply its cyberbullying statute remains to be seen. A closer look at the culture of cyberbullying, as is discussed in Mr. Morben's article, and the increasing numbers of anti-cyberbullying state statutes, however, may prompt Congress to revisit Section 230 of the Communications Decency Act, to at least modestly reform ISP immunity and give cyber-attacks victims some form of meaningful redress.

by Shishira Kothur, UMN Law Student, MJLST Staff

Social networking has become a prominent form of communication and expression for society. Many people continue to post and blog about their personal lives, believing that they are hidden by separate account names. This supposed anonymity gives a false sense of security, as members of society post and upload incriminating and even embarrassing information about themselves and others. This information, while generally viewed by an individual's 200 closest friends, is has also become a part of the courtroom.

This unique issue is further explained in Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-
Networking Evidence
, Volume 13, Issue 1 of the Minnesota Journal of Law, Science and Technology. Professor Ira P. Robbins emphasizes that since social media provides an easy outlet for wrongful behavior, it will inevitably find its way as evidence in litigation. Her article focuses on the courts' efforts to authenticate the evidence that is produced from Facebook, Twitter and other social media. Very few people take care to set appropriate privacy settings. The result from this practice is an easy way for anyone to find important, personal information, which they can use to hack accounts, submit their own postings under a different name, and incriminate others. Similarly, the creation of fake accounts is a prominent tool to harass and bully individuals to the point of disastrous and suicidal effects. With results such as untimely deaths and inappropriate convictions, the method of proving the authorship of such postings becomes a critical step when collecting evidence.

Professor Robbins comments that currently a person can be connected to and subsequently lawfully responsible for a posting without appropriate proof that the posting is, in fact, theirs. The article critiques the current method the court applies to identifying these individuals, claiming that there is too much emphasis on testimonials of current access, potential outside access, and other various factors. It proposes a new method of assigning authorship to the specific item instead of the account holder. She suggests a specific focus on the type of evidence when applying Federal Rule of Evidence 901(b)(4), which will raise appropriate questions such as the account ownership, security, and the overall posting that is related to the suit. The analysis thoroughly explains how this new method will provide sufficient support between the claims and the actual author. As social media continues to grow, so do the opportunities to hack, mislead, and ultimately cause harm. This influx of information needs to be filtered well in order for the courts to find the truth and serve justice to the right person.

by Alex Vlisides, UMN Law Student, MJLST Staff

Cyberbullying. It seems every few weeks or months, another story surfaces in the media with the same tragic narrative. A teenager was bullied, both at school and over the internet. The quiet young kid was the target of some impossibly cruel torment by their peers. Tragically, the child felt they had nowhere to turn, and took their own life.

Most recently, a 12 year old girl from Lakeland, FL, named Rebecca Ann Sedwick jumped to her death from the roof of a factory after being bullied online for months by a group of 15 girls. The tragedy has spurred the same news narrative as the many before, and the same calls for inadequate action. Prosecute the bullies or their parents. Blame the victim's parents for not caring enough. Blame the school for not stepping in.

News media's institutional bias is to cover the shocking story. The problem is that when considering policy changes to help the huge number of kids who are bullied online, these tragic stories may be the exact wrong cases to consider. Cyberbullying is not an issue that tragically surfaces every few months like a hurricane or a forest fire. It goes on every day, in virtually every middle school and high school in the country. Schools need policies crafted not just to prevent the worst, but to make things better each day.

It is incredibly important to remember students like Sedwick. But to address cyberbullying, it may be just as important to remember the more common effects of bullying: the student who stops raising their hand in class or quits a sports team or fears even going on social media sites. These things should be thought of not as potential warning signs of a tragedy, but as small tragedies themselves.

The media will never run headlines on this side of bullying. This means that policy makers and those advocating for change must correct for this bias, changing the narrative and agenda of cyberbullying to include the common tragedies. The issue is complex, emotional and ever-changing. Though it may not make for breaking news, meaningful change will honor students like Rebecca Ann Sedwick, while protecting students who continue to face cyberbullying every day.

by Elliot Ferrell, UMN Law Student, MJLST Staff

Thumbnail-Elliot-Ferrell.jpgThe average law student incurs $125,000 of debt and pays almost twice as much in tuition as a student did in 2001. Law students are understandably concerned with the legal market's job prospects, and many are vocal about. Students are not the only ones voicing their concerns, as a lawyers (employed and unemployed), professors, employers, and business people add their opinions and observations to the discourse as well. A common theme is to decry the rise of tuition costs and debt and the fall of enrollment and job openings.

by Eric Maloney, UMN Law Student, MJLST Staff

Thumbnail-Eric-Maloney.jpgFacebook has become a part of everyday life for people around the world. According to Mark Zuckerberg and Co., over one billion people (yes, with a "B") are active on Facebook every month, with an average of more than 600 million active users every day in December 2012. Disregarding bogus or duplicate accounts, that means roughly one-seventh of the entire human population is active on Facebook every month (with the world population currently sitting somewhere in the neighborhood of seven billion people).

Apparently, Facebook has become so commonplace and ingrained in the daily routine of some that they feel the need to use the social networking service from the privacy of their prison cells.

by Ian Birrell

Thumbnail-Ian-Birrell.jpgSince at least 1999 when Napster was originally launched, internet piracy, or downloading copyrighted materials (especially songs, videos, and games,) has been a contentious activity. The Recording Industry Association of America (RIAA) has historically taken a very public and aggressive stance by finding individuals associated with IP addresses matching those where this "file sharing" is coming from. After finding such a target, the RIAA would send a letter demanding a settlement for thousands of dollars or threatening litigation, risky and expensive to the target, despite a potentially very small monetary value of downloaded material. The RIAA suits, which have continued for a number of years, include a number of well publicized absurd claims.

by Sabrina Ly

Thumbnail-Sabrina-Ly.jpg Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers' arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: "My tattoo iz a pig get'n his brains blew out." Pig is considered a derogatory term for a police officer.The tattoo also had the officer's misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.