Court case

Developments in telecommunications policy being made in the legal system.

European Union courts to hear case that could hobble Facebook

The European Union courts will hear a case with a massive impact on Facebook and other American internet service companies. The case, which an Irish court on Oct 3 referred to the Court of Justice of the European Union, revolves around where companies can store personal information.

Max Schrems is suing Facebook under the claim that, so long as the United States allows bulk surveillance programs, the US cannot guarantee that data stored on servers located on its shores abides by the EU’s stringent personal data protections laws. Currently, Facebook and other companies use what are known as “standard contractual clauses” to assure European users that their personal information is being protected. Schrems launched a similar case against an earlier treaty between the United States and European Union to cover cross-boarder data storage known as Safe Harbor, which the European courts eventually nixed. Safe Harbor was replaced by a new treaty, Privacy Shield, which is undergoing similar challenges. If courts continue to find US protections for European Citizens data insufficient, it could result in US internet service companies being unable to do business with Europe without setting up specialized servers there.

ISPs want Supreme Court to kill Title II net neutrality rules now and forever

Broadband industry lobby groups have appealed to the US Supreme Court in an attempt to kill the Federal Communications Commission's network neutrality rules. The groups want the Supreme Court to rule that the FCC exceeded its authority when it reclassified Internet providers in order to impose stricter regulations. Such a ruling could prevent future FCCs from implementing net neutrality rules as strict as the current ones, which outlaw blocking, throttling, and paid prioritization. A ruling for the industry could also prevent future FCCs from reviving other consumer protections that are likely to be overturned by the commission's current Republican majority.

Lobby groups also allege that the FCC didn't do enough to justify its decision and that it didn't follow the required administrative procedures. But for potential long-term impact, the question of whether the FCC has the authority to classify broadband as a common carrier service is probably more significant. Whether the Supreme Court will actually decide to hear the case is far from certain.

AT&T asks U.S. Supreme Court to overturn net neutrality rules

AT&T is trying to take the fight over the Obama-era net neutrality rules to the US Supreme Court. On Sept 29, AT&T, the cable industry group NCTA, and CenturyLink filed separate appeals asking the court to overturn the controversial 2015 rules. A federal appeals court last year upheld the rules, which were passed by a Democrat-controlled Federal Communications Commission and supported by President Barack Obama. The broadband industry says it has no problem with the idea of an open internet, but it argues the new classification applies outdated regulations that have stifled investment.

Republicans, who now control the FCC, have already begun the process of dismantling the rules. In May FCC Chairman Ajit Pai, appointed by President Donald Trump, opened a proceeding to rewrite the rules. The FCC could vote to repeal the rules as early as December. Legal experts say this makes it less likely the Court will take the case. "The Supreme Court isn't likely to play a starring role on net neutrality now," said Matt Schettenhelm, a litigation and government analyst with Bloomberg Intelligence. "The court's likely to take a back seat, letting the FCC move ahead with its work to undo the 2015 order." This means the fight for net neutrality is likely to go on for several years as Democrats, consumer advocates and internet companies like Mozilla, which support the rules, have vowed to continue to fight.

Public Knowledge Calls for Court to Protect Rights to Access the Law

Public Knowledge filed an amicus curiae brief in the case ASTM v. Public Resource. The case concerns Public Resource’s copying of model building codes and educational testing codes, which had been enacted into federal law and regulations. The standards organizations sued Public Resource for copyright infringement based on the copying of those legally-enforceable codes. The case is currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit. The case is expected to be argued next year. The amicus brief, filed on behalf of a coalition of 62 organizations, companies, former government officials, librarians, innovators, and professors of law, asks the appeals court to permit Public Resource’s copying of the text of model codes enacted into law and not find it to be a copyright infringement.

AT&T Throttling Case Back in Court

The 9th Circuit Court of Appeals will hear arguments in a Federal Trade Commission throttling case against AT&T that has major implications for the agency’s reach over telecommunications companies. An 11-judge panel is taking a second look at the case, which centers on whether a carve-out in the FTC’s jurisdiction for "common carriers" should be based on a company’s activities or its status. A three-judge panel from the court sided with AT&T in 2016 and knocked down the FTC’s case against the telecom giant, ruling that the agency did not have the authority to bring the lawsuit against the company because of its status as a common carrier. The FTC asked the court to re-hear the case, and got support from the Federal Communications Commission and internet service providers including Comcast, Charter, Cox Communications and Verizon.

Court reveals another overseas-data fight between Google and federal government

Google came up on the losing end of a previously-undisclosed third showdown with the federal government over demands for data stored overseas, a federal court in Washington has revealed. The disclosure of yet another court fight over the issue comes as the US Supreme Court is preparing to decide as soon as Oct whether to weigh in on the question of whether U.S. law permits authorities to use U.S. courts to obtain electronic records kept outside of the country.

Court filings made public show that in July Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia rejected Google's challenge to a search warrant seeking company data stored abroad. Judge Howell agreed to hold the company in contempt for defying her order and to fine the firm $10,000 a day. However, the arrangement is largely symbolic, since a contempt order is needed to appeal such a ruling and she suspended the fine pending such an appeal. In fact, the firm and prosecutors jointly proposed the arrangement.

Can you be prosecuted for repeated unwanted emails to government offices or officials?

Can calling government offices or officials to insult them — especially after being told to stop — be punished the way that calling a private individual to insult them might be? I think the answer should be “no,” and the lower court precedents on the subject seem to agree; but in two recent cases, government officials seem to think that such speech can indeed be criminalized.

Former Soviet republic goes to court in bid to ‘export censorship’ beyond its borders

The country of Azerbaijan is suing two French journalists for defamation in France for describing the oil-rich state as a “dictatorship.” The move could set an important precedent, in France at least, for foreign governments seeking to curb freedom of the press beyond their shores. The targets of the lawsuit, which critics have decried as an attempt to “export censorship,” are investigative filmmaker Laurent Richard and TV presenter and reporter Elise Lucet.

Judge dismisses Shiva “I Invented EMAIL” Ayyadurai’s libel lawsuit against Techdirt

A federal judge in Massachusetts has dismissed a libel lawsuit filed earlier in 2017 against tech news website Techdirt. The claim was brought by Shiva Ayyadurai, who has controversially claimed that he invented e-mail in the late 1970s. Techdirt (and its founder and CEO, Mike Masnick) has been a longtime critic of Ayyadurai and institutions that have bought into his claims. "How The Guy Who Didn't Invent Email Got Memorialized In The Press & The Smithsonian As The Inventor Of Email," reads one Techdirt headline from 2012. Numerous articles that dubbed Ayyadurai a "liar" and a "charlatan" followed. That, in turn, led to Ayyadurai's January 2017 libel lawsuit.

In the Sept 6 ruling, US District Judge F. Dennis Saylor found that because it is impossible to define precisely and specifically what e-mail is, Ayyadurai's "claim is incapable of being proved true or false." The judge continued: "One person may consider a claim to be 'fake' if any element of it is not true or if it involves a slight twisting of the facts, while another person may only consider a claim to be 'fake' only if no element of it is true."

European Union court ruling restrains Brussels antitrust enforcers

The European Court of Justice gave Intel a lifeline in its appeal of the €1bn European Union fine for illegal price rebates by sending the case back to the General court to reconsider the chip-maker’s arguments against the 2009 decision.

The ruling raises the burden of proof for Europe’s antitrust watchdog to make a case against pricing incentives offered by dominant companies, increasing the commission’s workload to make its case in its open investigations into Google and Qualcomm. “This is a rebuff for the commission in its wish to apply form-based reasoning without considering the business realities,” said Alec Burnside of law firm Dechert. Price cuts or rebates for volume-buying are standard practice in many companies but current EU rules are unclear whether these discounts are illegal by design or only if they harm competition.