Source: Wikipedia

Last month, the European Commission proposed a new directive to enhance Internet privacy rights by regulating the access, collection, and use of personal data online. The proposed regulation would require Internet-based companies to obtain consumers’ express consent before using their personal data, and would also require those companies to delete user data upon request. The new directive would protect information ranging from e-mail and IP addresses to bank records and posts on social networking sites.

Notably, the proposed directive will not exempt American-based companies doing business in the European Union. Rather, the new regulation would require companies that offer services to EU citizens to provide the same protections for personal data handled outside the EU. This could be a potential blow – or at least an administrative hurdle – for global companies like Facebook, which has already been subject to multiple lawsuits involving users’ privacy rights in the United States.

While U.S. legislators may eventually follow the EU’s lead and enact statutes to broaden the right to online privacy, the United States has historically lagged behind Europe when it comes to privacy protection. In fact, the EU Charter of Fundamental Rights expressly guarantees the right to “protection of personal data.” Still, if the new EU regulation passes parliament this year, American Internet giants like Amazon and Facebook may have to revise their privacy policies for European Union consumers. This should at least prompt Congress to consider whether American Internet users deserve the same protections.

Source: http://flavorwire.com/253808/

On January 26, Twitter announced that it will remove Tweets on a country-by-country basis.  Recognizing that freedom of expression is a “human right,” Twitter also acknowledged the “responsibilities” and “limits” that accompany such a right, especially in countries such as France or Germany, where pro-Nazi content is banned by law.  Previously, Twitter could only implement global bans – no matter where the Tweet was posted, no one in the world could see the Tweet if it was taken down.  Now, only persons from the originating country will be blocked, while the rest of the world can still see an offending Tweet.  This country-by-country policy would help Twitter comply with laws that vary by country.  The New York Times observed that the majority of Twitter’s 100 million users live overseas, and that Twitter was confronting the complexities of being both a free speech tool and commercial venture.

Unsurprisingly, the revised policy has sparked considerable controversy, resulting in an immediate “Twitter Blackout” on January 28.  But others have remarked that Twitter is balancing the values behind free speech with necessary compliance with foreign and local laws.  One commentator remarked how Twitter was the only company to fight the United States government over the Wikileaks case, and Twitter informed users when it lost.  The policy has also been praised for its transparency, as users are notified when infringing Tweets are removed, and Twitter will post updates relating to notices on the “Chilling Effects” website, http://chillingeffects.org/twitter. Continue reading →

On Monday, the Supreme Court released its highly anticipated decision in the Fourth Amendment case Unites States v. Jones. The decision, unanimous in favor of respondent Jones, upheld the D.C. Circuit’s reversal of his drug-related convictions.

Jones came under suspicion of trafficking in narcotics in 2004. He was made a target of an investigation that included attaching a GPS tracking device to the car he frequently used. As implemented by law enforcement, the use of this tracking device fell outside the scope of any warrant police had obtained. The device was used to track the vehicle’s location for 28 days and collected more than 2,000 pages of data.

The Supreme Court agreed with the D.C. Circuit that this investigative behavior, outside the scope of a search warrant, was a violation of Jones’ Fourth Amendment right to be secure in his effects against unreasonable searches. The majority position, written by Justice Antonin Scalia, stated that the Court had “no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted,” citing to, among other authorities, an English case from 1765. Continue reading →

In December, the U.S. District Court for the District of Oregon declined blogger Crystal Cox the protection of an Oregon reporter shield law and First Amendment case law, holding that both applied only to institutional media. See Obsidian Finance Group v. Cox, 2011 WL 5999334, CV-11-57-HZ (D. Or. Nov. 30, 2011).  Now she might get a second chance to challenge the defamation claim against her. Cox filed a motion for a new trial Jan. 4, this time with the aid of two attorneys, one of them First Amendment scholar Eugene Volokh – a stark contrast to her previous pro se representation.

The Seattle Weekly provides a concise background of the case, but the gist is that Cox was sued for defamation by investment firm Obsidian Finance Group after writing several blog posts that were critical of the firm and its co-founder. Allegations regarding all but one post were dismissed. Cox admitted that the final post at issue was factual in nature, declining her ability to argue it was protected opinion. But she refused to name the source of the information, claiming Oregon’s Shield Law, Or. Rev. Stat. §44.510 et seq., offered her protection. Cox further asserted that the plaintiff failed to prove negligence or actual malice under the Gertz standard for defamation. See Obsidian Finance, 2011 WL 5999334 at *5 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974)). While Cox claimed to be an investigative journalist, U.S. District Judge Marco A. Hernandez found her not to be a “journalist” within the parameters of the statute, declining to offer her its protection. He also deemed that Gertz, which requires a showing of negligence when a private speaker is defamed, only applied to journalists, not bloggers. Without these defenses, a jury imposed a $2.5 million verdict against her. Continue reading →

Last September, the LTA blog discussed a line of Tax Court cases in which taxpayers unsuccessfully attempted to defend themselves from I.R.S. penalties by arguing that their reliance on tax preparation software amounted to reasonable cause and good faith.  After this line of consistent taxpayer defeats, the Tax Court recently ruled in favor of a taxpayer who used tax preparation software to self-prepare his tax return and mistakenly omitted a large amount of trust fund income from his taxable income. See Olsen v. Commissioner. T.C. Summ. Op. 2011-131.  While Olsen is notable because a taxpayer who relied on a tax return preparation program was able to assert a successful defense against I.R.S. penalties, it is especially interesting because the successful taxpayer argument in this case was more nuanced than those in previous cases.

Generally, when a taxpayer substantially understates his tax liability by more than $5,000, the I.R.S. asserts a substantial omission penalty against the taxpayer. I.R.C. §6662(b)(2), I.R.C. §6662(d).  When faced with this substantial omission penalty, a taxpayer may argue that he qualifies for an exception to the penalty because he had a reasonable cause for the understatement and he acted with good faith.  I.R.C. §6664(c).  In determining whether a taxpayer acted with reasonable cause and good faith, a court will look at all the pertinent facts and circumstances. Treas. Reg. § 1.6664-1(b)(1).

In the past, taxpayers who relied on software programs to help them prepare their tax returns had a hard time proving reasonable cause and good faith and the Tax Court upheld the penalty, reasoning that tax return preparation software is only as good as the information a taxpayer puts into it. See e.g. Bunney v. Commissioner, 114 T.C. 259, 267 (2000), Lam v. Commissioner, T.C. Memo 2010-82, Anyika v. Commissioner, T.C. Memo 2011-69.

Continue reading →