How to Fight Fake News in a World Spewing Alternative Facts

Picture1By Mackenzie Olson

Before you re-share an online article, before you give weight to its assertions—before you even begin to read the first line—ask yourself one question: “Does this look like a credible source?”

At a young age, I learned that I must first ask this question before citing to any given resource in a research paper or project. Accordingly, I learned where to look for reputable sources, how to determine which of these sources were credible, and the ways in which to best use these sources to locate further acceptable resources.

I was surprised when I learned just how frequently Internet users are duped into reading, believing, and ultimately re-sharing fake news stories. In the months immediately prior to the 2016 U.S. presidential election, the top performing fake news stories generated more engagement than the top performing real stories published by major news outlets. These leading fake stories generated over 8.7 million shares, reactions, and comments on social media, while the leading stories published by major news outlets generated about 7.3 million similar reactions. Continue reading

Are My Emails Beyond the Grasp of the U.S. Government?

gavelBy Mackenzie Olson

Companies like Microsoft and Google store a lot of customer data in storage centers overseas. As of July 2016, 2nd Circuit precedent indicated that, due to the foreign location of those centers, the U.S. government could not compel these companies to turn over data, even by issue of a search warrant. The case that rendered this decisions was In the Matter of Warrant to Search a Certain E–Mail Account Controlled and Maintained by Microsoft Corporation. (But also take note of the dissent in the denial of en banc review). As the Southern District of New York adjudicated the Warrant case, the Second Circuit Court of Appeals was its final arbiter. Accordingly, the Court of Appeals’ judgment only controlled as precedent in that jurisdiction. And though its opinion has been persuasive elsewhere, at least one judge, based in the Third Circuit, now disagrees with its outcome.

On February 3, 2017, Magistrate Judge Thomas J. Rueter of the Eastern District of Pennsylvania issued an opinion and subsequent orders compelling Google to turn over certain data stored in overseas facilities, per the request of two previously issued search warrants.

In his opinion, Judge Rueter explains that, “the present dispute centers on the nature and reach of the warrants issued pursuant to section 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 (“SCA”).

He frames the relevant issues as follows: “The court must determine whether the [g]overnment may compel Google to produce electronic records relating to user accounts pursuant to search warrants issued under section 2703 of the SCA, or in the alternative, whether Google has provided all records in its possession that the [g]overnment may lawfully compel Google to produce in accordance with the Second Circuit’s ruling.” Rueter ultimately holds that “compelling Google to disclose to the [g]overnment the data that is the subject of the warrants does not constitute an unlawful extraterritorial application of the [SCA].”

In its reporting of the decision, news outlet Reuters particularly emphasizes Judge Rueter’s reasoning that “transferring emails from a foreign server so FBI agents c[an] review them locally as part of a domestic fraud probe d[oes] not qualify as a seizure . . . because there [i]s “no meaningful interference” with the account holder’s “possessory interest” in the data sought . . . [the retrieval] has the potential for an invasion of privacy, [but] the actual infringement of privacy occurs at the time of disclosure in the United States.”

Orin Kerr, law professor at The George Washington University School of Law, notes numerous problems with Judge Rueter’s decision. “The issue in this case is statutory, not constitutional. Even if you accept the (wrong) framing of the issue as being whether the SCA applies outside the United States, the answer has to come from what Congress focused on, not where the constitutional privacy interest may or may not be. Where you place the Fourth Amendment search or seizure strikes me as irrelevant to the extraterritorial focus of the statute.”

Kerr further contends that, “Even accepting the court’s framing, I don’t think it’s right that no seizure occurred abroad. As I see it, copying Fourth Amendment-protected files seizes them under the Fourth Amendment ‘when copying occurs without human observation and interrupts the stream of possession or transmission’. . . . That test is satisfied here when the information was copied. The court suggests that bringing a file back to the United States is not a seizure because Google moves data around all the time and ‘this interference is de minimis and temporary.’ I don’t think that works. Google is a private company not regulated by the Fourth Amendment, so whether it moves around data is irrelevant.”

It will come as no surprise that Google plans to appeal the Third Circuit decision. Likely a slough of other tech and media companies that previously filed amicus curie briefs in the Microsoft case will file briefs again, such as Apple, Amazon, AT&T, eBay, and Verizon.

Key questions that remain, then, are what will the Third Circuit decide on review?

Will the court follow the precedent set by the Second Circuit in Warrant?

Will it adopt the reasoning of the dissenters in the denial of Warrant‘s en banc review?

Will it follow Judge Rueter’s reasoning in the case at bar?

Or will it render an entirely novel opinion?

And though we can be sure that the losing party will petition the Supreme Court, one also must consider whether a final player emerge, in the form of Congress directly intervening? After all, the SCA was enacted in 1986, and many consider it not only out of date, but also relatively unworkable for modern technological issues. The time certainly seems ripe for a statutory update.

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Slippery Slope for Online Service Providers with New California Appellate Court Ruling

ispsBy Tyler Quillin

The most important law governing the internet just had its 20th birthday earlier this year, the Communications Decency Act (CDA). Signed by President Bill Clinton in 1996, the CDA grants online service providers immunity from liability for most illegal activities of their users. What’s more, the CDA not only allows large internet-based companies like Facebook, Amazon, and Yelp! to survive because they don’t have to individually each user’s activity, it also enables a large portion of the freedom of speech the general public enjoys online daily.

Yet, despite 20 years of precedent, the CDA has come under scrutiny. Most notably, a California appellate court issued a ruling that included an order for Yelp!, a nonparty to the case, to take down a defamatory post involving an attorney who sued a former client for posting defamatory comments and reviews on Yelp!. Along with the court order to take down the reviews, the attorney won on a default judgment to the tune of over $500,000.

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Digital Whispers: Encrypted Communications and Law Enforcement

By Sam Hamptonlock

Much of the media attention addressing encryption for smartphones has been primarily centered on Apple and Google. Both Android and iOS operating systems offer whole device encryption, where a user’s phone data cannot be accessed without a code. Apple was the target of a lawsuit brought by the FBI who was requesting Apple unlock the cellphone of San Bernadino shooter, Syed Farook (see previous WJLTA Blog posts here and here). This case typifies an ongoing public debate about the balance the law should strike between privacy and security. But whole device encryption is just the tip of the iceberg.

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Exit Smartphones, Enter Smart Contact Lenses

contact lenseBy Tyler Quillin

Remember Google Glass? The spectacles Google

developed that allowed users to have hands-free, smart technology integrated into their eyewear.

Well, Google Glass did not do as well as projected, and Google ceased production in 2015. However, Google and Samsung are now rumored to be taking “wearable technology,” like Google Glass, to another level.

Both Google and Samsung are reportedly developing similar “smart” contact lenses. News surfaced on April 5, 2016 that Samsung submitted a patent application  for contact lenses with built-in cameras and other features. And both companies’ patent applications describe contact lenses containing a camera, sensors to detect movement, and antennae to interface with smart devices. Some speculate that blinking could control the lenses, which poses potential concerns over accidental commands.  However, by placing the device directly on the eye, the companies hope to improve clarity and accuracy, features that Google Glass lacked. Continue reading