Report to the Midyear Meeting

Bridgetown, Barbados

April 4 – 7, 2014

After the high controversy regarding the denunciations following the Snowden case and the massive espionage campaign conducted by the National Security Agency (NSA), at the end of March, President Barak Obama announced a new bill to restrict phone data collection to preserve citizens' right to privacy, but maintaining the NSA's ability to gain information about terrorists.

Congress has three months to define the proposal's regulations which main focus entails having phone companies provide the NSA with any suspected terrorist conversation, using a court order which will enable them to record ongoing conversations to and from targeted phone lines.

In early February, the Department of Justice (DOJ) finalized the regulations on media subpoenas. This occurred following the revelation that the DOJ had secretly obtained Associated Press phone records and seized a Fox News reporter's email account. The Reporters Committee for Freedom of the Press led a coalition of more than 50 media organizations that sent a proposal to the Attorney General suggesting revisions to the DOJ guidelines on media subpoenas. The guidelines were first written in 1970 and only applied to subpoenas served directly to journalists; they were amended in 1980 to cover third-party subpoenas (such as a subpoena for telephone records of a journalist).

Some important strides were made, while other issues were left on the table. While the Attorney General's recommendations do not provide notice to the journalist or media organization of a third-party subpoena in all cases, as the coalition requested, the recommendations do make it harder for the Department to deny notice generally in third-party cases, and in no case can notice be delayed for more than 90 days. Notably, the recommendations also clarify that the DOJ will not invoke the "suspect exception" of the Privacy Protection Act, which allows the government to obtain a search warrant for material belonging to a journalist who is suspected of a crime, when the journalist is engaging in ordinary newsgathering activities and is not the target of the criminal probe. The question remains, however, what is meant by "ordinary newsgathering activities" – a phrase that appears multiple times in the new regulations.

Alabama blogger Roger Shuler remains in jail five months after his arrest for refusing to remove blog posts about the son of a former governor. Shuler wrote that Robert Riley Jr. had a relationship with lobbyist Liberty Duke and then secretly paid for her to have an abortion. Riley and Duke swore they had never even been in the same room alone together. They sued Shuler for defamation. The judge granted their request for a preliminary injunction, which required Shuler to remove the blog posts and not to publish "any defamatory statement" about Riley and Duke. Shuler refused to comply and was arrested for contempt of court, which led to his jailing. It is very unusual in the United States for a court to order injunctive relief in a defamation case.

The Reporters Committee for Freedom of the Press wrote a letter to the judge, expressing concern that the judge made an immediate determination on defamation without a trial or full adjudication on the matter. Without properly determining whether defamation existed, the court was engaging in unlawful prior restraint by forcing the blog content's removal, the Reporters Committee argued. The state chapter of the American Civil Liberties Union also filed a friend-of-the-court brief in the case.

The judge has indicated that Shuler will remain in jail unless he agrees to take down the blog posts. Shuler insists the court does not have jurisdiction over him and will not hire a lawyer to appeal the decision. The Committee to Protect Journalists lists Shuler as the only journalist currently imprisoned (for actions related to his work) in the country.

New York's highest court ruled in December that Fox News reporter Jana Winter did not have to testify in a Colorado murder trial. The ruling was significant because the court held that Winter, a New York journalist, could be protected by New York's shield law even in Colorado. New York has one of the United States' strongest shield laws. Colorado's shield statute, on the other hand, offers less protection, and under that state's shield law, Winter likely would be forced to reveal her confidential source or face contempt-of-court charges. By finding that Winter was protected by New York's shield law – even in another state's court – the New York court saved Winter from having to reveal her confidential source in the Colorado trial.

In broad terms, this ruling should protect all journalists living in New York who are asked to testify in another state, when that state's shield law offers significantly less protection than New York's shield law. A similar ruling could potentially be replicated in other states, where a journalist is asked to testify in another state that offers less protection than his or her home state.

In January, the U.S. Court of Appeals for the D.C. Circuit dealt a blow to advocates of "net neutrality" or "open Internet." These constituencies are concerned that in the absence of regulation, Internet providers – as the gatekeepers that control networking infrastructure – could charge higher rates for certain web operators or could exclude certain web content for any reason the providers choose. They could also slow down traffic of disfavored content and speed up the traffic of favored content. Opponents of net neutrality argue that government regulation in this area would impinge on their autonomy and impose rigidity on the industry.

The D.C. Circuit Court held that the Federal Communication Commission could not continue to regulate Internet providers under its current paradigm; however, if the FCC were to reclassify the Internet as a "common carrier," then the FCC could have the power to regulate it. The FCC responded by saying it would issue new rules that, like the old rules, would aim to regulate Internet providers, but it stopped short of saying it would reclassify the Internet as a common carrier.

The U.S. government announced last March its plans to relinquish control over the body that manages Internet domain names and addresses, known as the Internet Corporation for Assigned Names and Numbers (ICANN). Since the birth of the Internet, the United States has managed the assignment of web addresses, including determining which addresses are deemed .com, .org, .gov, and so on, and ensuring Internet traffic flows smoothly. In 1998, the U.S. government contracted the work to ICANN, an international non-profit organization. That contract is set to expire in September 2015, and the U.S. government has said it will withdraw from its oversight of ICANN at that time. While some praise the United States' effort to remove itself – and therefore remove any suggestion of dominance or secret control of the content of the Internet – others fear the change could lead to censorship or troubles with the basic operation of the Internet.

In late February the Ninth Circuit ruled in Garcia v. Google that, because an actress may have copyright ownership over her performance in a film, the court may force Google to remove the film from YouTube. Finding that an actress has copyright ownership over her performance is highly unusual. The dissent argued: "just as the singing of a song is not copyrightable, while the entire song recording is copyrightable, the acting in a movie is not copyrightable, while the movie recording is copyrightable."

The case surrounds the anti-Islamic film "Innocence of Muslims," which sparked protests in Egypt and death threats against the filmmaker and actors. Cindy Lee Garcia is an actress in the film who was told she would be in an adventure film set in ancient Arabia called "Desert Warrior." She later discovered her appearance in "Innocence of Muslims" on YouTube, in which she was dubbed as saying, "Is your Mohammed a child molester?"

Garcia could have sued the filmmaker for breach of contract, false light, fraud, unjust enrichment, and infliction of emotional distress, among other claims. With all of those claims, Garcia could have received money damages. But with a copyright claim, Garcia was able to request injunction relief – that is, she can ask the court to force a publisher or a platform such as YouTube to remove content from the public domain if it infringes on her copyright.

This case is troubling because it expands the boundaries for when a court may force the removal of content from the web.