838 Unit Five Selected Topics in Government Business Relations
decision, while the other three were the minority that held that the
court had no personal jurisdiction.30 The Supreme Court declined to
review the decision.31
Questions
Why might the French court have had jurisdiction over Yahoo!
France? Over Yahoo!?
2. If you were sitting on the Ninth Circuit, how would you have
decided the jurisdiction question? Consider both the U.S.rule of
minimum contacts and the Restatement provision.
3. Notice the court’s conclusion that the principle of comity is out-
weighed by its constitutional obligation to uphold the freedom
of speech. Is this approach to the requirements of comity con-
sistent with the discussion of comity in Chapter 16?
1. We cannot tell from this opinion why the French court believed
it had jurisdiction to adjudicate against Yahoo!, as opposed to
Yahoo! France. Look back at the discussion of the Restatement
(Third) of Foreign Relations Law immediately before this case.
Part Three-Constitutional Law: Speech and Privacy
Speech
The district court opinion in Yahoo! v. La Ligue Contre Le Racisme et L’Antisemitisme illus-
trates a free speech issue the Internet raises in an international context. Internet content
LO 18-3
has also raised free speech issues here at home. The Internet’s seeming anonymity, ease of
Identify free use, relatively low costs, and global reach make it a natural vehicle for transporting speech
speech issues messages. As we saw in Chapter 5, the First Amendment protects us from government
that arise in the restraints on the content of speech, although reasonable restraints on the context (time,
context of the In- place, and manner) of that speech are sometimes constitutionally permissible. Thus, a
ternet and pres- court will not restrain free speech by enjoining someone from posting defamatory or
ent the competing copyrighted material, but the damaged party may sue for defamation or copyright infringe-
interests that ment after the posting 32 [For articles on cyberlaw free speech, search for “free speech” at
make each par- http://repository.jmls.edu).
ticular issue dif-
Issues of free speech on the Internet can be far more complex than their analog counter-
ficult to resolve.
parts. The issue of underage access to pornography illustrates this well. Whereas restricting
underage access to pornography was relatively easy before the internet, doing so online may
be impossible. Whether and how minors can be kept away from online
Restricting underage access
pornography, while simultaneously maintaining adult access to consti-
tutionally protected content, has been an ongoing struggle. Congress
to pornography online may be
has been unsuccessful in its repeated attempts to enact constitutional
impossible.
legislation that would nevertheless effectively eliminate access by
minors. In 1997, the Supreme Court held that critical provisions of the
Communications Decency Act of 1996 were overbroad and therefore violated the First Amend-
ment.33 Then, in 2007, a federal district court found the Child Online Protection Act of 1998
unconstitutional and permanently enjoined its enforcement. In refusing to hear the govern-
ment’s appeal in 2009, the Supreme Court effectively left the permanent injunction in place. 34
Somewhat more successfully, Congress has addressed a slightly different problem-the
exploitation of children in the making of child pornography and its online accessibility to
predators of children. Its first attempt was held unconstitutional by the Supreme Court, 35
but in 2008 the Court upheld the PROTECT Act of 2003. Nevertheless, child pornography
Chapter Eighteen Internet Law and Ethics 839
remains one of the Internet’s most intractable challenges: “too large for law enforcement,
policy makers and child protection groups to handle on their own.”36 Major content hosters,
such as YouTube, may enforce content standards, but online child pornography today hides
and multiplies on the dark web37 (a part of the Internet intentionally hidden from search
engines and requiring a specific browser, Tor, to gain access).
Anonymous Speech
“[An) author’s decision to remain anonymous, like other decisions concerning omissions or
additions to the content of a publication, is an aspect of the freedom of speech protected by
the First Amendment.”38 So held the U.S. Supreme Court in 1995.
A unique characteristic of the Internet and electronic communication through the Inter-
net is the ease with which a poster or sender can be anonymous and remain so without “fear
of economic or official retaliation … [or] social ostracism.”39 Anonymity makes it more
likely that individuals will feel free to say things about which they would otherwise keep
silent. Thus, it can promote the robust exchange of ideas.”40 Anonymity may, however,
make individuals bolder about asserting untruths-misleading, fraudulent, or otherwise
unprotected speech. For example, sites containing nonconsensual pornography on which
exes can post explicit photos and videos of their former partners, colloquially known as
“revenge porn,” have proliferated, at times along with disparaging remarks, information on
where the individuals work and live, and links to their social media accounts.
The victim of such a post can request that the hosting site remove the material, but it
is largely up to the hosting site whether the content will actually be
Over one million people
removed. Even if the offending material is removed from the origi-
signed a petition to stop Porn-
nating site, there is a significant chance that it has been copied and
hub from posting underage could reappear in other locations at any time. This occurs frequently
and other nonconsensual por- on Pornhub, the most popular porn site in the world, where flagged
nographic videos. content can take weeks to be removed. By mid-2020, over one million
people had signed a petition to stop Pornhub from posting underage
and other nonconsensual pornographic videos, but the company, citing freedom of speech
and freedom of expression, continued to allow these types of submissions. 41 The Commu-
nications cency Act makes it very unlikely that the hosting website will be held liable for
such postings, particularly if it removes the material when requested by the subject of the
posting to do so. The law rests liability on the “information content provider,” and courts
have generally held that website owners are not content providers on these facts. However,
some lower courts seem willing to consider that some actions of a hosting website may result
in liability such as itself supplying responsive comments supportive of the original post or
by naming the site in such a way as to encourage offensive, damaging, or defamatory posts. 4.
By 2019, 46 states and Washington, D.C. had passed some form of nonconsensual
pornography law, providing legal avenues for victims to directly hold perpetrators account-
able,43 although the laws are said to have a myriad of problems and loopholes by victims
and legal professionals alike, including a requirement to prove malicious intent on the part
of the perpetrator. 44 Victims have occasionally been successful bringing civil suits for dam-
ages, depending on their specific facts, based on copyright infringement, emotional distress,
online impersonation, harassment, invasion of privacy, voyeurism, or stalking.45 [For more
on the campaign to end revenge porn, see www.cybercivilrights.org].
840
Unit Five Selected Topics in Government-Business Relations
Before a victim of revenge porn or other forms of online harassment, defamation, and
invasion of privacy can sue the content provider, the victim has to be able to prove who that
is. Seeking the release of that information from the website or the ISP of the poster triggers
First Amendment claims for anonymity on behalf of the original poster. In the case that
follows, a Yahoo! poster argues the First Amendment prohibits Yahoo! from responding to
a subpoena from Immunomedics, a corporation claiming the anonymous poster is, or was,
an employee who violated the company’s confidentiality agreement by posting company
information on a Yahoo! message board.
Immunomedics v. Jean
Doe 775 A.2d 773 (N.J. Super. 2001)
LEGAL
BRIEFCASE
Judge Fall
Defendant Jean Doe, a/b/a “moonshine_fr,” appeals from an order
… denying her motion to quash a subpoena issued to Yahoo! by
plaintiff, Immunomedics, Inc., seeking all personally identifiable
information relating to the person or identity who posted mes-
sages on the Yahoo! Finance Message Board under the identifier
“moonshine_fr” which may identify or lead to the identification of
of the two messages in question, the first, with Moonshine
describing herself as “[a] worried employee,” stated that Immuno-
medics was “out of stock for diagnostic products in Europe” and
claimed that there would be “no more sales if [the] situation [did] not
change.” The second message, allegedly posted by Moonshine after
the initial complaint was filed, reported that Chairman of the Com-
pany Dr. Goldenberg was going to fire the Immunomedics “european
manager.” In her certification to the trial court, Immunomedics’ Exec-
that person or
entity.utive Vice President and Chief Operations Officer Cynthia L. Sullivan
Immunomedics is a publicly held biopharmaceutical Delaware admitted that the statements were true, but that, as an employee,
corporation … focused on the development, manufacture, and Moonshine had violated the company’s confidentiality agreement
commercialization of diagnostic imaging and therapeutic products and “several provisions of the company’s Employee Handbook.
for the detection and treatment of cancer and infectious diseases. On or about October 20, 2000, Immunomedics served a sub-
Yahoo! is an Internet Service Provider (ISP) that maintains poena on Yahoo!, seeking discovery of Moonshine’s true identity.
a Web site that includes a section called Yahoo! Finance. Yahoo! Yahoo!, in turn, contacted Moonshine. In response, Moonshine filed
Finance maintains a message board for every publicly traded com- a motion to quash the subpoena on or about November 15, 2000,
pany, including Immunomedics. Visitors to the Immunomedics site … After considering the arguments, the judge denied Moon-
can obtain up-to-date information on the company, and can post shine’s motion, stating, in pertinent part,
and exchange messages about issues related to the operation or
We have two issues here. We have an issue, she’s an employee,
performance of the company.
she signed a confidential document saying that she was not
On October 12, 2000, Immunomedics filed a complaint against going to speak freely about information she learned at the
Jean Doe, also known by the computer screen name “moonshine_ company. So she contracted away her right of free speech if
fr” (“Moonshine”). The complaint alleged that Moonshine had she’s an employee. Number two, free speech, anonymous, but
“posted a message on Yahoo! Finance.” Immunomedics claimed if it harms another individual, that another way that we have a
that message contained information confidential and proprietary
little bit of a dent in our rights for free speech.
to Immunomedics. As a result, Immunomedics asserted it had
sustained injury and that Moonshine should be held liable under
theories of breach of contract, breach of duty of loyalty, and negli-
Moonshine contends the motion judge erred in denying her
gently revealing confidential and proprietary information.
motion to quash the subpoena, as anonymous speech is consti-
tutionally protected and Immunomedics’ complaint is insufficient
to warrant a breach of that anonymity. Immunomedics argues that,
Chapter Eighteen Internet Law and Ethics 841
while anonymous speech is constitutionally protected, that protec- confidentiality agreement.” Within its “Confidentiality and Assign-
tion can be overcome if a defendant uses that freedom in an unlawful ment Agreement,” Immunomedics includes the following language:
manner. … This Agreement and any disputes arising under or in connection
In another case involving an application for expedited discovery with it shall be governed by the laws of the State of New Jersey
to disclose the identity of an anonymous user of an ISP message and each of the parties hereto hereby submits to the jurisdiction
board, we concluded that courts must decide such applications by of any Federal or state court sitting in the State of New Jersey
15
striking a balance between the First Amendment right of an indi- over any such dispute.
dat
vidual to speak anonymously and the right of a company to protect
its proprietary interest in the pursuit of claims based on actionable cause of action for breach of the confidentiality agreement founded
Accordingly, Immunomedics clearly established a prima facie
conduct by the ISP message board user.
on the content of Moonshine’s posted messages.
In balancing Moonshine’s right of anonymous free speech
We hold that … the trial court should first require the plaintiff to
against the strength of the prima facie case presented and the
necessity for disclosure, it is clear that the motion judge struck
undertake efforts to notify the anonymous posters that they are the
the proper balance in favor of identity disclosure. … Although
subject of a subpoena or application for an order of disclosure, and
withhold action to afford the fictitiously named defendants a reason-
anonymous speech on the Internet is protected, there must be an
able opportunity to file and serve opposition to the application….
avenue for redress for those who are wronged. Individuals choos-
ing to harm another or violate an agreement through speech on the
The court shall also require the plaintiff to identify and set forth
Internet cannot hope to shield their identity and avoid punishment
the exact statements purportedly made by each anonymous poster
through invocation of the First Amendment.
that plaintiff alleges constitute actionable speech.
The complaint and all information provided to the court should
be carefully reviewed to determine whether plaintiff has set forth
Affirmed.
a prima facie cause of action against the fictitiously named anon-
ymous defendants. In addition . . . , the plaintiff must produce Questions
sufficient evidence supporting each element of its cause of action,
1. In your opinion, should employers, victimized individuals, and
on a prima facie basis, prior to a court ordering the disclosure of the
others who have been damaged by anonymous postings be
identity of the unnamed defendant.
able to obtain the identity of the poster from the hosting site or
Finally, assuming the court concludes that the plaintiff has
the poster’s ISP? Explain.
presented a prima facie cause of action, the court must balance
the defendant’s First Amendment right of anonymous free speech
2. An FBI agent monitored an AOL chat room suspected of being
against the strength of the prima facie case presented and the
a site for exchanging child pornography. The agent did not par-
necessity for the disclosure of the anonymous defendant’s identity
ticipate in the chat room conversations. Charbonneau allegedly
distributed child pornography to the chat room participants,
to allow the plaintiff to properly proceed.
including the FBI agent. Charbonneau was arrested. Did
Charbonneau have a First Amendment free speech right to
Applying the procedure and test outlined, we conclude Judge transmit child pornography online? Explain. See U.S. v. Kenneth
Zucker-Zarett properly analyzed the disclosure issue, and we
Charbonneau, 979 F. Supp. 1177 (S.D. Ohio 1997).
affirm substantially for the reasons articulated by the judge in her 3. Having read these materials on freedom of speech and the lim-
oral opinion. … We add the following. Immunomedics presented its on the right to anonymity, what would you advise a friend
sufficient evidence that Moonshine is, or was, an employee of who was a regular blogger? A classmate posting comments on
Immunomedics. Ms. Sullivan indicated in her certification that www.ratemyprofessors.com? Your middle school cousin who is
“all employees are bound by several Company policies and a an avid Facebook user? Explain.
Commercial Speech
Remember from Chapter 5 that commercial speech has been accorded reduced, but signifi-
cant First Amendment protection. Thus, online advertising is subject to the same kinds of
government oversight as that in print and on television. Perhaps the most well-known and
irritating form of online commercial messaging is spam. Though this electronic junk mail is
842
Unit Five Selected Topics in Government-Business Relations
often a legitimate form of commercial message, it is also a regular annoyance and can con-
tain deceptive or fraudulent information and objectionable content. Spam as a percentage
of overall e-mail traffic has dropped dramatically in recent years. In 2019, only 28.5 percent
of e-mail traffic was spam, as compared to 88.1 percent a decade earlier. 46
The federal CAN-SPAM Act of 2003 establishes both civil and criminal penalties for
violations of its provisions and is enforced by the Federal Trade Commission (FTC). One of
its provisions is the requirement that e-mail recipients are able to opt out of receiving future
commercial e-mails.47 This rule allows users to reduce or avoid the amount of spam they
receive from legitimate sources, but does little to discourage spam from illegitimate sources,
of which the quality and personalization has increased dramatically over time. Early era spam
of this type was essentially a low-grade version of legitimate spam marketing e-mails, selling
products like male enhancement pills and work-from-home schemes. They have been trans-
formed into highly targeted schemes that play off of recipients’ fears. Two common types are:
Phishing e-mails: For example, an e-mail appearing to come from a real company, such as
a bank, Facebook or Microsoft, that informs the recipient of suspicious activity on their
account in order to gain the recipients log-in credentials, and
Ransom e-mails: For example, an e-mail including one of the recipient’s former pass-
words, sourced online from one of any number of company data breaches, that alleges
to have hacked the recipient’s computer, to be in possession of compromising webcam
footage of the recipient, and to threaten to release the video unless paid a bounty.48
[To file a complaint with the FTC about spam you receive, go to www.ftccomplaint
assistant.gov).
PRACTICING ETHICS
“The Internet is not a civil-rights-free space.”
It is well-known that internet platforms, such as Google and
Facebook, collect data on individuals which is used to provide
ads targeted to particular demographics. Facebook has gone
further by providing services that do the reverse, services that
enable advertisers to exclude their ads from reaching particular
demographics.
In 2018, the National Fair Housing Alliance was one of sev-
eral groups that sued Facebook for creating “pre-populated lists
that made it possible for its housing advertisers to ‘exclude’ (in
Facebook terminology) home seekers from viewing or receiving
rental or sales ads because of protected characteristics, including
race, family status, and sex.” Facebook settled the suit in March
2019 for just under $5 million in payments and an agreement
to remove age, gender, zip code, and a criteria it labeled “eth-
nic affinity” for filtering ads regarding housing, employment, and
credit. Geographic targets for such ads will now have a 15-mile
minimum radius from a specific location, and its “lookalike audi-
ence” tool will not use additional factors, such as religious views
or membership in specific Facebook Groups. As stated by counsel
for plaintiffs: “The internet is not a civil-rights-free space.”
Question
Is race ever an acceptable demographic to use for targeted
advertising campaigns? Explain your answer. If you answer in
the affirmative, identify when it is acceptable and when it is not.
Sources: Press Release, “Fair Housing Groups Settle Historic Lawsuit
with Facebook: Transforms Facebook’s Ad Platform Impacting Millions
of Users,” National Fair Housing Alliance, March 19, 2019 [https://
nationalfairhousing.org); Nat Ives, “Facebook Axes Age, Gender
and Other Targeting for Some Sensitive Ads,” The Wall Street Journal,
March 19, 2019 [www.wsj.com); and Noam Scheiber and Mike Isaac,
“Facebook Halts Ad Targeting Cited in Bias Complaints,” The New York
Times, March 19, 2019 [www.nytimes.com).
Purchase answer to see full
attachment
decision, while the other three were the minority that held that the
court had no personal jurisdiction.30 The Supreme Court declined to
review the decision.31
Questions
Why might the French court have had jurisdiction over Yahoo!
France? Over Yahoo!?
2. If you were sitting on the Ninth Circuit, how would you have
decided the jurisdiction question? Consider both the U.S.rule of
minimum contacts and the Restatement provision.
3. Notice the court’s conclusion that the principle of comity is out-
weighed by its constitutional obligation to uphold the freedom
of speech. Is this approach to the requirements of comity con-
sistent with the discussion of comity in Chapter 16?
1. We cannot tell from this opinion why the French court believed
it had jurisdiction to adjudicate against Yahoo!, as opposed to
Yahoo! France. Look back at the discussion of the Restatement
(Third) of Foreign Relations Law immediately before this case.
Part Three-Constitutional Law: Speech and Privacy
Speech
The district court opinion in Yahoo! v. La Ligue Contre Le Racisme et L’Antisemitisme illus-
trates a free speech issue the Internet raises in an international context. Internet content
LO 18-3
has also raised free speech issues here at home. The Internet’s seeming anonymity, ease of
Identify free use, relatively low costs, and global reach make it a natural vehicle for transporting speech
speech issues messages. As we saw in Chapter 5, the First Amendment protects us from government
that arise in the restraints on the content of speech, although reasonable restraints on the context (time,
context of the In- place, and manner) of that speech are sometimes constitutionally permissible. Thus, a
ternet and pres- court will not restrain free speech by enjoining someone from posting defamatory or
ent the competing copyrighted material, but the damaged party may sue for defamation or copyright infringe-
interests that ment after the posting 32 [For articles on cyberlaw free speech, search for “free speech” at
make each par- http://repository.jmls.edu).
ticular issue dif-
Issues of free speech on the Internet can be far more complex than their analog counter-
ficult to resolve.
parts. The issue of underage access to pornography illustrates this well. Whereas restricting
underage access to pornography was relatively easy before the internet, doing so online may
be impossible. Whether and how minors can be kept away from online
Restricting underage access
pornography, while simultaneously maintaining adult access to consti-
tutionally protected content, has been an ongoing struggle. Congress
to pornography online may be
has been unsuccessful in its repeated attempts to enact constitutional
impossible.
legislation that would nevertheless effectively eliminate access by
minors. In 1997, the Supreme Court held that critical provisions of the
Communications Decency Act of 1996 were overbroad and therefore violated the First Amend-
ment.33 Then, in 2007, a federal district court found the Child Online Protection Act of 1998
unconstitutional and permanently enjoined its enforcement. In refusing to hear the govern-
ment’s appeal in 2009, the Supreme Court effectively left the permanent injunction in place. 34
Somewhat more successfully, Congress has addressed a slightly different problem-the
exploitation of children in the making of child pornography and its online accessibility to
predators of children. Its first attempt was held unconstitutional by the Supreme Court, 35
but in 2008 the Court upheld the PROTECT Act of 2003. Nevertheless, child pornography
Chapter Eighteen Internet Law and Ethics 839
remains one of the Internet’s most intractable challenges: “too large for law enforcement,
policy makers and child protection groups to handle on their own.”36 Major content hosters,
such as YouTube, may enforce content standards, but online child pornography today hides
and multiplies on the dark web37 (a part of the Internet intentionally hidden from search
engines and requiring a specific browser, Tor, to gain access).
Anonymous Speech
“[An) author’s decision to remain anonymous, like other decisions concerning omissions or
additions to the content of a publication, is an aspect of the freedom of speech protected by
the First Amendment.”38 So held the U.S. Supreme Court in 1995.
A unique characteristic of the Internet and electronic communication through the Inter-
net is the ease with which a poster or sender can be anonymous and remain so without “fear
of economic or official retaliation … [or] social ostracism.”39 Anonymity makes it more
likely that individuals will feel free to say things about which they would otherwise keep
silent. Thus, it can promote the robust exchange of ideas.”40 Anonymity may, however,
make individuals bolder about asserting untruths-misleading, fraudulent, or otherwise
unprotected speech. For example, sites containing nonconsensual pornography on which
exes can post explicit photos and videos of their former partners, colloquially known as
“revenge porn,” have proliferated, at times along with disparaging remarks, information on
where the individuals work and live, and links to their social media accounts.
The victim of such a post can request that the hosting site remove the material, but it
is largely up to the hosting site whether the content will actually be
Over one million people
removed. Even if the offending material is removed from the origi-
signed a petition to stop Porn-
nating site, there is a significant chance that it has been copied and
hub from posting underage could reappear in other locations at any time. This occurs frequently
and other nonconsensual por- on Pornhub, the most popular porn site in the world, where flagged
nographic videos. content can take weeks to be removed. By mid-2020, over one million
people had signed a petition to stop Pornhub from posting underage
and other nonconsensual pornographic videos, but the company, citing freedom of speech
and freedom of expression, continued to allow these types of submissions. 41 The Commu-
nications cency Act makes it very unlikely that the hosting website will be held liable for
such postings, particularly if it removes the material when requested by the subject of the
posting to do so. The law rests liability on the “information content provider,” and courts
have generally held that website owners are not content providers on these facts. However,
some lower courts seem willing to consider that some actions of a hosting website may result
in liability such as itself supplying responsive comments supportive of the original post or
by naming the site in such a way as to encourage offensive, damaging, or defamatory posts. 4.
By 2019, 46 states and Washington, D.C. had passed some form of nonconsensual
pornography law, providing legal avenues for victims to directly hold perpetrators account-
able,43 although the laws are said to have a myriad of problems and loopholes by victims
and legal professionals alike, including a requirement to prove malicious intent on the part
of the perpetrator. 44 Victims have occasionally been successful bringing civil suits for dam-
ages, depending on their specific facts, based on copyright infringement, emotional distress,
online impersonation, harassment, invasion of privacy, voyeurism, or stalking.45 [For more
on the campaign to end revenge porn, see www.cybercivilrights.org].
840
Unit Five Selected Topics in Government-Business Relations
Before a victim of revenge porn or other forms of online harassment, defamation, and
invasion of privacy can sue the content provider, the victim has to be able to prove who that
is. Seeking the release of that information from the website or the ISP of the poster triggers
First Amendment claims for anonymity on behalf of the original poster. In the case that
follows, a Yahoo! poster argues the First Amendment prohibits Yahoo! from responding to
a subpoena from Immunomedics, a corporation claiming the anonymous poster is, or was,
an employee who violated the company’s confidentiality agreement by posting company
information on a Yahoo! message board.
Immunomedics v. Jean
Doe 775 A.2d 773 (N.J. Super. 2001)
LEGAL
BRIEFCASE
Judge Fall
Defendant Jean Doe, a/b/a “moonshine_fr,” appeals from an order
… denying her motion to quash a subpoena issued to Yahoo! by
plaintiff, Immunomedics, Inc., seeking all personally identifiable
information relating to the person or identity who posted mes-
sages on the Yahoo! Finance Message Board under the identifier
“moonshine_fr” which may identify or lead to the identification of
of the two messages in question, the first, with Moonshine
describing herself as “[a] worried employee,” stated that Immuno-
medics was “out of stock for diagnostic products in Europe” and
claimed that there would be “no more sales if [the] situation [did] not
change.” The second message, allegedly posted by Moonshine after
the initial complaint was filed, reported that Chairman of the Com-
pany Dr. Goldenberg was going to fire the Immunomedics “european
manager.” In her certification to the trial court, Immunomedics’ Exec-
that person or
entity.utive Vice President and Chief Operations Officer Cynthia L. Sullivan
Immunomedics is a publicly held biopharmaceutical Delaware admitted that the statements were true, but that, as an employee,
corporation … focused on the development, manufacture, and Moonshine had violated the company’s confidentiality agreement
commercialization of diagnostic imaging and therapeutic products and “several provisions of the company’s Employee Handbook.
for the detection and treatment of cancer and infectious diseases. On or about October 20, 2000, Immunomedics served a sub-
Yahoo! is an Internet Service Provider (ISP) that maintains poena on Yahoo!, seeking discovery of Moonshine’s true identity.
a Web site that includes a section called Yahoo! Finance. Yahoo! Yahoo!, in turn, contacted Moonshine. In response, Moonshine filed
Finance maintains a message board for every publicly traded com- a motion to quash the subpoena on or about November 15, 2000,
pany, including Immunomedics. Visitors to the Immunomedics site … After considering the arguments, the judge denied Moon-
can obtain up-to-date information on the company, and can post shine’s motion, stating, in pertinent part,
and exchange messages about issues related to the operation or
We have two issues here. We have an issue, she’s an employee,
performance of the company.
she signed a confidential document saying that she was not
On October 12, 2000, Immunomedics filed a complaint against going to speak freely about information she learned at the
Jean Doe, also known by the computer screen name “moonshine_ company. So she contracted away her right of free speech if
fr” (“Moonshine”). The complaint alleged that Moonshine had she’s an employee. Number two, free speech, anonymous, but
“posted a message on Yahoo! Finance.” Immunomedics claimed if it harms another individual, that another way that we have a
that message contained information confidential and proprietary
little bit of a dent in our rights for free speech.
to Immunomedics. As a result, Immunomedics asserted it had
sustained injury and that Moonshine should be held liable under
theories of breach of contract, breach of duty of loyalty, and negli-
Moonshine contends the motion judge erred in denying her
gently revealing confidential and proprietary information.
motion to quash the subpoena, as anonymous speech is consti-
tutionally protected and Immunomedics’ complaint is insufficient
to warrant a breach of that anonymity. Immunomedics argues that,
Chapter Eighteen Internet Law and Ethics 841
while anonymous speech is constitutionally protected, that protec- confidentiality agreement.” Within its “Confidentiality and Assign-
tion can be overcome if a defendant uses that freedom in an unlawful ment Agreement,” Immunomedics includes the following language:
manner. … This Agreement and any disputes arising under or in connection
In another case involving an application for expedited discovery with it shall be governed by the laws of the State of New Jersey
to disclose the identity of an anonymous user of an ISP message and each of the parties hereto hereby submits to the jurisdiction
board, we concluded that courts must decide such applications by of any Federal or state court sitting in the State of New Jersey
15
striking a balance between the First Amendment right of an indi- over any such dispute.
dat
vidual to speak anonymously and the right of a company to protect
its proprietary interest in the pursuit of claims based on actionable cause of action for breach of the confidentiality agreement founded
Accordingly, Immunomedics clearly established a prima facie
conduct by the ISP message board user.
on the content of Moonshine’s posted messages.
In balancing Moonshine’s right of anonymous free speech
We hold that … the trial court should first require the plaintiff to
against the strength of the prima facie case presented and the
necessity for disclosure, it is clear that the motion judge struck
undertake efforts to notify the anonymous posters that they are the
the proper balance in favor of identity disclosure. … Although
subject of a subpoena or application for an order of disclosure, and
withhold action to afford the fictitiously named defendants a reason-
anonymous speech on the Internet is protected, there must be an
able opportunity to file and serve opposition to the application….
avenue for redress for those who are wronged. Individuals choos-
ing to harm another or violate an agreement through speech on the
The court shall also require the plaintiff to identify and set forth
Internet cannot hope to shield their identity and avoid punishment
the exact statements purportedly made by each anonymous poster
through invocation of the First Amendment.
that plaintiff alleges constitute actionable speech.
The complaint and all information provided to the court should
be carefully reviewed to determine whether plaintiff has set forth
Affirmed.
a prima facie cause of action against the fictitiously named anon-
ymous defendants. In addition . . . , the plaintiff must produce Questions
sufficient evidence supporting each element of its cause of action,
1. In your opinion, should employers, victimized individuals, and
on a prima facie basis, prior to a court ordering the disclosure of the
others who have been damaged by anonymous postings be
identity of the unnamed defendant.
able to obtain the identity of the poster from the hosting site or
Finally, assuming the court concludes that the plaintiff has
the poster’s ISP? Explain.
presented a prima facie cause of action, the court must balance
the defendant’s First Amendment right of anonymous free speech
2. An FBI agent monitored an AOL chat room suspected of being
against the strength of the prima facie case presented and the
a site for exchanging child pornography. The agent did not par-
necessity for the disclosure of the anonymous defendant’s identity
ticipate in the chat room conversations. Charbonneau allegedly
distributed child pornography to the chat room participants,
to allow the plaintiff to properly proceed.
including the FBI agent. Charbonneau was arrested. Did
Charbonneau have a First Amendment free speech right to
Applying the procedure and test outlined, we conclude Judge transmit child pornography online? Explain. See U.S. v. Kenneth
Zucker-Zarett properly analyzed the disclosure issue, and we
Charbonneau, 979 F. Supp. 1177 (S.D. Ohio 1997).
affirm substantially for the reasons articulated by the judge in her 3. Having read these materials on freedom of speech and the lim-
oral opinion. … We add the following. Immunomedics presented its on the right to anonymity, what would you advise a friend
sufficient evidence that Moonshine is, or was, an employee of who was a regular blogger? A classmate posting comments on
Immunomedics. Ms. Sullivan indicated in her certification that www.ratemyprofessors.com? Your middle school cousin who is
“all employees are bound by several Company policies and a an avid Facebook user? Explain.
Commercial Speech
Remember from Chapter 5 that commercial speech has been accorded reduced, but signifi-
cant First Amendment protection. Thus, online advertising is subject to the same kinds of
government oversight as that in print and on television. Perhaps the most well-known and
irritating form of online commercial messaging is spam. Though this electronic junk mail is
842
Unit Five Selected Topics in Government-Business Relations
often a legitimate form of commercial message, it is also a regular annoyance and can con-
tain deceptive or fraudulent information and objectionable content. Spam as a percentage
of overall e-mail traffic has dropped dramatically in recent years. In 2019, only 28.5 percent
of e-mail traffic was spam, as compared to 88.1 percent a decade earlier. 46
The federal CAN-SPAM Act of 2003 establishes both civil and criminal penalties for
violations of its provisions and is enforced by the Federal Trade Commission (FTC). One of
its provisions is the requirement that e-mail recipients are able to opt out of receiving future
commercial e-mails.47 This rule allows users to reduce or avoid the amount of spam they
receive from legitimate sources, but does little to discourage spam from illegitimate sources,
of which the quality and personalization has increased dramatically over time. Early era spam
of this type was essentially a low-grade version of legitimate spam marketing e-mails, selling
products like male enhancement pills and work-from-home schemes. They have been trans-
formed into highly targeted schemes that play off of recipients’ fears. Two common types are:
Phishing e-mails: For example, an e-mail appearing to come from a real company, such as
a bank, Facebook or Microsoft, that informs the recipient of suspicious activity on their
account in order to gain the recipients log-in credentials, and
Ransom e-mails: For example, an e-mail including one of the recipient’s former pass-
words, sourced online from one of any number of company data breaches, that alleges
to have hacked the recipient’s computer, to be in possession of compromising webcam
footage of the recipient, and to threaten to release the video unless paid a bounty.48
[To file a complaint with the FTC about spam you receive, go to www.ftccomplaint
assistant.gov).
PRACTICING ETHICS
“The Internet is not a civil-rights-free space.”
It is well-known that internet platforms, such as Google and
Facebook, collect data on individuals which is used to provide
ads targeted to particular demographics. Facebook has gone
further by providing services that do the reverse, services that
enable advertisers to exclude their ads from reaching particular
demographics.
In 2018, the National Fair Housing Alliance was one of sev-
eral groups that sued Facebook for creating “pre-populated lists
that made it possible for its housing advertisers to ‘exclude’ (in
Facebook terminology) home seekers from viewing or receiving
rental or sales ads because of protected characteristics, including
race, family status, and sex.” Facebook settled the suit in March
2019 for just under $5 million in payments and an agreement
to remove age, gender, zip code, and a criteria it labeled “eth-
nic affinity” for filtering ads regarding housing, employment, and
credit. Geographic targets for such ads will now have a 15-mile
minimum radius from a specific location, and its “lookalike audi-
ence” tool will not use additional factors, such as religious views
or membership in specific Facebook Groups. As stated by counsel
for plaintiffs: “The internet is not a civil-rights-free space.”
Question
Is race ever an acceptable demographic to use for targeted
advertising campaigns? Explain your answer. If you answer in
the affirmative, identify when it is acceptable and when it is not.
Sources: Press Release, “Fair Housing Groups Settle Historic Lawsuit
with Facebook: Transforms Facebook’s Ad Platform Impacting Millions
of Users,” National Fair Housing Alliance, March 19, 2019 [https://
nationalfairhousing.org); Nat Ives, “Facebook Axes Age, Gender
and Other Targeting for Some Sensitive Ads,” The Wall Street Journal,
March 19, 2019 [www.wsj.com); and Noam Scheiber and Mike Isaac,
“Facebook Halts Ad Targeting Cited in Bias Complaints,” The New York
Times, March 19, 2019 [www.nytimes.com).
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