Difficulty with Reconciling the Fourth Amendment and Social Media.

Difficulty with Reconciling the Fourth Amendment and Social Media.

In a November 29, 2012 New York Times article entitled Panel Approves a Bill to Safeguard E-Mail, Charlie Savage details a bill passed by the Senate Judiciary Committee which would require a warrant in most cases where the government seeks e-mail from internet service providers. Currently the government is able to obtain e-mail either by warrant or subpoena. The government’s choice is dictated by the Stored Communications Act and series of court decisions which have interpreted it. Savage indicates that the bill is not expected to make it through Congress in 2012, instead the bill would be subject to negotiations during 2013. The sponsor of the bill, Senator Patrick Leahy argues that e-mails stored by third parties should be afforded the same protection as papers stored inside of an individual’s home. According to Senator Leahy, an architect of the Stored Communications Act, as technology changes the law which protect privacy must also change.

In a December 26, 2012 Huffington Post story entitled Netflix Social Sharing Bill Passes Without Email Privacy Protection, the writer, referring to the bill sponsored by Senator Leahy, points out how Congress passed the “Netflix amendment” to the Video Protection Act, but dropped the e-mail privacy provision. In the article the writer argues that the failure to include the privacy provision leaves the Stored Communications Act intact, making it relatively easy for law enforcement officers to gain access to open stored e-mail. The author of the article seems to suggest that Congress’s failure to pass the bill, put the interest of Facebook users who want to share a “Michael Bay movie marathon” with their friends over the privacy rights of everyone.

There is no argument that our privacy rights deserve protection. Under the Fourth Amendment a person has a right to be secure in their houses, papers and effects, against unreasonable search and seizure. In Justice Harlan’s concurring opinion in Katz v. United States, a test for the reasonable expectation of privacy was developed. The “Katz Expectation of Privacy Test” considers whether (1) the individual subjectively by his conduct has “exhibited an actual expectation of privacy” and (2) whether the individuals subjective of privacy is “reasonable” from an objective view.

Most people would agree that ensuring Fourth Amendment protections is more important than a bill which enables Netflix users to share a “Michael Bay movie marathon” with everyone on Facebook. However, applying the “Katz Expectation of Privacy Test” to contemporary social media may not be as simple as it appears. Since the enactment of the Stored Communications Act, the courts have been able to apply the original language of the Act with constantly evolving technology. In some of the cases the court has held that the individual exhibited an actual expectation of privacy but that the expectation was not reasonable from an objective view, while other courts have held the opposite view. Irrespective of how the courts have decided, many of them struggled, albeit successfully, with reconciling the Fourth Amendment with social media.

As a result of these court decisions, law enforcement and prosecutors have developed guidelines which ensure their actions are in accordance with the Stored Communications Act and judicial precedent. Despite Congresses inability to pass the 2012 e-mail privacy provision, it is hard to imagine that members of Congress are more concerned about a Michael Bay movie marathon than they are about our Fourth Amendment rights. Even if the unimaginable were true and Congress was indifferent to our rights, the courts will continue to determine if there is a reasonable expectation of privacy. Nevertheless, one can assume that Congress may be having the same difficulty reconciling the right of privacy to the ever changing world of social media.

A Chilling Effect on Blogging?

In a recent New York Times article entitled Blogger’s Incarceration Raises First Amendment Questions, Campbell Robertson details the story of an activist who is the only journalist in the Western Hemisphere in a jail cell because of accusations he made on his blog.  The blogger, Roger Shuler, is the author of the Legal Schnauzer.  Schuler’s blog is known for its ongoing allegations of public corruption and conspiracy theories. Schuler’s arrest and subsequent detention on contempt charges stems from a defamation lawsuit filed by the son of the former governor of Alabama.  Last July, the court issued a temporary restraining order which enjoined Schuler from making any further blog posts accusing the former governor’s son of impregnating a lobbyist and secretly paying for an abortion.  The court also directed Schuler to remove older salacious blog posts about the married son of the former governor. At a subsequent hearing where Schuler appeared pro se, he unsuccessfully argued that the court lacked jurisdiction, calling the court a joke.  The court subsequently ruled that the hearing “served as a trial on the merits” and ordered that Schuler be jailed until he removed the scandalous posts.  Now Schuler, sits in a jail cell because he is unwilling to remove the posts or have an attorney contest his incarceration.

What I find most interesting about this case is whether First Amendment rights regarding blog posts may be impacted because of Schuler’s refusal to engage in the legal process?  According to several civil rights attorneys, an amicus brief from the ACLU and even some of Schuler’s critics, the court’s ruling is alarming.  One of Schuler’s critics, who in the past has threatened to sue Schuler for defamation, criticized the courts holding as having a potential chilling effect on blogging.  In this case the court banned Schuler’s blog posts holding that they were libel.  However, libel must be proved at trial, and here the hearing where Schuler opted out of the system is not enough according to Constitutional Law attorney Ken White.  Now, bloggers First Amendment rights could be affected because of Schuler’s refusal to participate in the judicial system.  In his article, Robertson details how Schuler’s past accusations have led to a flurry of previous litigation where Schuler mostly lost.  Nevertheless, Schuler’s salacious allegations deserve the same protection under the First Amendment as those of any other person, blogger or journalist.  However, any effects on bloggers First Amendment rights should not be determined in a case where a blogger refuses to take part in the judicial system but instead argues that the court is a “joke” and lacks jurisdiction.  Instead bloggers First Amendment rights must be forged where the case is argued on its merits.  In this case the effect on blogging may not be chilling but instead may only be room temperature, but we may not find out until Schuler opts back in to the judicial system and argues the case on its merits.

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