Articles Posted in Communications Law

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Time Warner filed suit alleging a violation of the Sherman Act, 15 U.S.C. 1 et seq., in the tying of certain premium cable television services to the leasing of ʺinteractiveʺ set‐top cable boxes. The district court dismissed two iterations of the complaint, including the Third Amended Complaint, the operative complaint for the purposes of this opinion. The court held that the Third Amended Complaint fails to adequately plead facts that, if proven, would establish that:  (i) the set‐top cable boxes and the premium programming they transmit are separate products for the purposes of antitrust law; and (ii) Time Warner possesses sufficient market power in the relevant markets to establish an illegal tie‐in. Accordingly, the court affirmed the judgment. View "In re Set-Top Cable Television Box Antitrust Litig." on Justia Law

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Microsoft appealed from the district court's order denying its motion to quash a warrant issued under section 2703 of the Stored Communications Act (SCA), 18 U.S.C. 2701 et seq., and holding Microsoft in contempt of court for refusing to execute the warrant on the government’s behalf. The warrant directed Microsoft to seize and produce the contents of an e‐mail account - an account believed to be used in furtherance of narcotics trafficking - that it maintains for a customer who uses the company’s electronic communications services. Microsoft produced its customer’s non‐content information to the government, as directed. That data was stored in the United States. But Microsoft ascertained that, to comply fully with the warrant, it would need to access customer content that it stores and maintains in Ireland and to import that data into the United States for delivery to federal authorities. The court concluded that Congress did not intend the SCA’s warrant provisions to apply extraterritorially. The focus of those provisions is protection of a user’s privacy interests. Accordingly, the SCA does not authorize a United States court to issue and enforce an SCA warrant against a United States‐based service provider for the contents of a customer’s electronic communications stored on servers located outside the United States. Therefore, the court concluded that the district court lacked authority to enforce the warrant against Microsoft. The court reversed the denial of the motion to quash because Microsoft has complied with the warrant’s domestic directives and resisted only its extraterritorial aspect; vacated the finding of civil contempt; and remanded with instructions to the district court to quash the warrant insofar as it directs Microsoft to collect, import, and produce to the government customer content stored outside the United States. View "Microsoft v. United States" on Justia Law

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Peter Paul Biro, a controversial figure known in the art world for using fingerprint analysis to authenticate art in an effort to insert a measure of objectivity into a previously subjective process, filed suit against the New Yorker defendants as well as republishers for defamation after an article was published about him. Among other things, the article contained interviews of various individuals critical of plaintiff, and it suggested that he stood to profit from some of his more dubious authentications. The district court dismissed the complaint. The court held that Rule 8 of the Federal Rules of Civil Procedure requires a limited‐purpose public figure to plead in a plausible way that defendants acted with actual malice. In this case, the court concluded that plaintiff failed to plausibly allege that defendants acted with actual malice. Accordingly, the court affirmed the judgment. View "Biro v. Conde Nast" on Justia Law

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Plaintiff filed suit under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030, and the Stored Communications Act (SCA), 18 U.S.C. 2701 et seq., alleging that defendant, her former boyfriend, had gained access to her e-mail and Facebook accounts without her permission and therefore in violation of the CFAA and the SCA. Plaintiff discovered that she could not log on to her AOL e-mail account on or about August 1, 2011 and plaintiff discovered that she could not log into her Facebook account on February 24, 2012. The district court granted defendant's motion to dismiss the complaint as untimely. While the CFAA and the SCA provided a civil cause of action, the statute of limitations to file under each statute is two years. The court concluded that plaintiff's claims relating to defendant's alleged unlawful access to her e-mail account are time-barred because she filed suit on January 2, 2014, after the two year statute of limitations had expired. However, the court concluded that plaintiff's claims relating to the alleged unlawful access of her Facebook account were timely filed, less than two years from the date they accrued. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings. View "Sewell v. Bernardin" on Justia Law

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Plaintiffs challenged, on statutory and constitutional grounds, the telephone metadata program under which the NSA collects in bulk "on an ongoing daily basis" the metadata associated with telephone calls made by and to Americans. The NSA aggregates those metadata into a repository or data bank that can later be queried. The district court granted defendants' motion to dismiss and denied plaintiffs' request for a preliminary injunction. The court concluded that the plaintiffs have standing to sue; the court disagreed with the district court insofar as it held that plaintiffs are precluded from bringing suit against the government and hold that they have a right of action under the Administrative Procedure Act (APA), 5 U.S.C. 702; on the merits, the court concluded that § 215 of the PATRIOT Act, Pub. L. No. 107-56, section 215, does not authorize the telephone metadata collection program; the court did not address the constitutionality of the program; and the court declined to conclude that a preliminary injunction is required, leaving it to the district court to reconsider, in the first instance, the propriety of preliminary relief in light of a correct understanding of the governing law. Therefore, the district court erred in ruling that section 215 authorizes the telephone metadata collection program. The telephone metadata program exceeds the scope of what Congress has authorized and therefore violates § 215. The court vacated and remanded for further proceedings. View "ACLU v. Clapper" on Justia Law

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Wright-Darrisaw called the White House Comments Line and, after statements characterized as “foul,” and “irrational,” stated “I’m going to f**k and kill Obama.” A telephone operator transferred her to the Secret Service. The call was not recorded. The Secret Service subpoenaed phone records and determined that Wright-Darrisaw had called the White House Comments Line several times. Wright-Darrisaw admitted to calling to voice her displeasure with child custody laws, but denied making any threats. Wright-Darrisaw was convicted of threatening to kill the President, 18 U.S.C. 871(a), and of making a false statement, 18 U.S.C. 1001(a)(2),and was sentenced to 33 months in prison. The district court declined to apply a four-level decrease in the offense level under U.S.S.G. 2A6.1(b)(6), finding that the threat involved deliberation, and applied a three-level increase under U.S.S.G. 3A1.2(a) because Wright-Darrisaw was motivated by the victim’s status as a government official. The Second Circuit deferred consideration of the sufficiency of the evidence that the communication constituted a “true threat,” pending the Supreme Court’s decision in United States v. Elonis, but remanded for reconsideration of the sentence in light of a Second Circuit holding that “deliberation” under U.S.S.G. 2A6.1(b)(6) is deliberation related to the communication of the threat itself. View "United States v. Wright-Darrisaw" on Justia Law

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Peter Ricci, a Teamsters member since 1983, refused to endorse Union President Doyle in 2002. For the next 10 years, Ricci claims, he suffered retaliation. He was fired from jobs he should have kept; he was not placed in jobs he should have gotten; and generally disfavored, even as compared with members with less seniority. In 2012, members of the Union distributed newsletters containing statements about the Riccis. Those newsletters were also published on a website hosted on GoDaddy’s web servers. The Riccis claim that GoDaddy refused to investigate Ricci’s complaints. In the Ricci’s pro se defamation and retaliation suit, the district court dismissed all claims against GoDaddy and federal claims against the Union. The Second Circuit affirmed. GoDaddy is immune from the defamation claims under the Communications Decency Act of 1996: “[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,” 47 U.S.C. 230(c)(1), and “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The labor claims were barred by the NLRA’s six‐ month statute of limitations, 29 U.S.C. 160(b). View "Ricci v. Teamsters Union Local 456" on Justia Law

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Officer Matthews sued, alleging that the City of New York retaliated against him for speaking to his commanding officers about an arrest quota policy at his precinct. The district court granted the defendants summary judgment, holding that Matthews spoke as a public employee, not as a citizen, and that his speech was, therefore, not protected by the First Amendment. The Second Circuit vacated, reasoning that because Matthews’s comments on precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen. View "Matthews v. City of New York" on Justia Law

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Plaintiff filed suit against MAB, a collection agency, alleging that MAB sent numerous telephone calls to his mobile phone number in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. MAB made the calls in an attempt to collect plaintiff's deceased mother-in-law's unpaid $68 electric bill. The district court concluded that plaintiff consented to the calls when he contacted the electric company to discontinue service after the mother's death. However, the court concluded that plaintiff did not consent to giving his phone number "during the transaction that resulted in the debt owed" where he provided his number long after the debt was incurred and was not responsible for the debt. Accordingly, the court concluded that the district court erred in granting summary judgment to MAB where plaintiff did not consent to the calls and the calls were prohibited by the TCPA. The court reversed and remanded. View "Nigro v. Mercantile Adjustment Bureau" on Justia Law

Posted in: Communications Law

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Plaintiff filed suit in district court in Vermont against the Diocese and its former priest, alleging that the priest transported plaintiff from New York to Vermont for the purpose of sexually abusing him, and did sexually abuse him. The Diocese, a New York special act corporation with its principal office in Albany, subsequently petitioned the court for a writ of mandamus directing the district court in Vermont to dismiss the case against it for lack of personal jurisdiction. The court granted the Diocese's petition, concluding that this was an extraordinary case warranting mandamus relief where the court considered (a) the irreparable harm caused by a needless foray into prior abuse investigations within the Diocese, exposing victims and their families to grueling inquires that would not be undertaken in the absence of the district court's erroneous ruling, (b) the clarity of the district court's error and futility of remand, and (c) the opportunity in this case to shed light on the Supreme Court's most recent expressions on general jurisdiction, especially as applied to religious and other charitable organizations, constituted "exceptional circumstances" that warrant the issuance of the writ. View "In Re: Roman Catholic Diocese of Albany, NY" on Justia Law