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Wiretap Order, not a Search Warrant, Needed to Obtain Certain Information from Facebook

/ Rob Nussbaum

The April 18, 2022 Trending Law Blog post discussed how, in Facebook, Inc. v. State of New Jersey, the New Jersey Appellate Division held that a communications data warrant, rather than a wiretap order, was required for law enforcement officers to obtain “prospective electronically stored information” from Facebook users as part of an ongoing criminal investigation.

In a June 29, 2023 decision, however, the Supreme Court of New Jersey unanimously reversed the determination of the Appellate Division.

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Social Media Influencer Sues Facebook and Twitter

/ Rob Nussbaum

In Hart v. Facebook Inc., et al., the United States District Court for the Northern District of California dismissed a social media influencer’s lawsuit against Facebook and Twitter for allegedly violating his First Amendment rights by flagging his posts and suspending his social media accounts. The influencer also sued President Joe Biden and Surgeon General Vivek Murthy in the same action for allegedly colluding with the social media platforms to monitor, flag, suspend and delete his posts.

In Hart, the plaintiff alleged that Facebook and Twitter restricted him from posting to his accounts or flagging his posts after he posted what the platforms considered to be misleading information about COVID-19. The platforms each found the posts at issue to be in violation of their terms of services and policies. Facebook and Twitter each moved to dismiss the complaint for failing to state a claim upon which relief could be granted because there was no state action, a requirement for a First Amendment violation.

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Will it be the End of §230 as We Know It?

/ Rob Nussbaum / 1 Comment

Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (hereafter “§230”), protects internet services, like Facebook, Twitter, and the like, from liability based on words used by third parties who use their platforms. The August 23, 2022 Trending Law Blog post discussed how on March 7, 2022, §230 staved off an attack by a private plaintiff in Texas, who challenged Facebook’s §230 protection, when the Supreme Court of the United States declined to decide whether §230 provided immunity from suit to internet platforms “in any case arising from the publication of third-party content, regardless of the platform’s own misconduct.” At that time, Justice Clarence Thomas stated that while he agreed the Texas matter was not appropriate for review by the Supreme Court, he did call for the Court “to address the proper scope of immunity under §230” in a future appropriate case. Apparently that case has arrived.

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A Possible ‘High Noon’ for Social Media Platforms Looms at the Supreme Court

/ Rob Nussbaum / 2 Comments

The August 13, 2021 Trending Law Blog post discussed how, in NetChoice, LLC v. Attorney General, State of Florida, the United States District court for the Northern District of Florida enjoined Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. Thereafter, the September 8, 2022 Trending Law Blog post discussed how in December 2021 a federal court in Texas enjoined enforcement of a law in the case of NetChoice, LLC v. Paxton which would have limited a large number of social media companies from moderating content. The Florida case was ultimately appealed to the United States Court of Appeals for the Eleventh Circuit while the Texas case was appealed to the United States Court of Appeals for the Fifth Circuit.

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Section 230 Dodges Another Judicial Bullet

/ Rob Nussbaum / 1 Comment

The June 10, 2020 and July 22, 2019 posts on Trending Law Blogs discussed, among other things, how Section 230 of the Communications Decency Act, 47 U.S.C. §230 (c)(1) (hereafter “§230”), has come under attack by politicians who seek to remove the §230 immunity that protects internet platforms such as Google, Yahoo!, Microsoft and Facebook when they are sued for re-publishing content on their websites which is provided by a third-party.

On March 7, 2022, §230 staved off an attack by a private plaintiff in Texas who challenged Facebook’s §230 protection when the Supreme Court of the United States denied the plaintiff’s petition for certiorari. According to the Petition for Writ of Certiorari, the plaintiff claimed she was sex trafficked as a minor “because Facebook’s products connected her with a sex trafficker.” Facebook asserted it was “completely immune from suit” under §230. After the Texas Supreme Court ruled in favor of Facebook, plaintiff appealed to the U.S. Supreme Court, asking the Court to rule on whether §230 provided immunity from suit to internet platforms “in any case arising from the publication of third-party content, regardless of the platform’s own misconduct.”

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A Communication Data Warrant or Wiretap Order – Which is needed for Law Enforcement to Obtain ESI from Facebook?

/ Rob Nussbaum / 1 Comment

Digital FingerprintIn a recent case decided by the Appellate Division in New Jersey, Facebook, Inc. v. State of New Jersey, the court considered whether communication data wire warrants (“CDWs”) or wiretap orders had to be served on Facebook for law enforcement officers to obtain “prospective electronically stored information” from Facebook users as part of an ongoing criminal investigation. The court held that a CDW rather than a wiretap order was required. (The court additionally held that the duration of the particular CDWs – 30 days – was too lengthy under New Jersey’s search warrant procedures and had to be modified to a 10 day duration.)

In reaching this decision, the Appellate Division reversed decisions of two trial judges who each had ruled that wiretap orders – not CDWs – were needed to compel Facebook to turn over information, i.e., images, videos, audio files, posts, comments, histories, the contents of private messages, etc., it would collect prospectively from the subjects of the investigation. The CDWs sought “the ongoing disclosure of prospective electronic communications for thirty consecutive days, and the immediate disclosure of at least twice as many days’ worth of the historical communications.”  Facebook provided all of the historical communications requested but moved to quash the CDWs to the extent they sought the contents of prospective electronic communications, contending that a wiretap order was needed to obtain those communications. (A wiretap order requires law enforcement to satisfy a significantly greater burden to be issued as compared to what must demonstrated to obtain a CDW.)

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Southern District of New York Rejects Ninth Circuit’s Copyright Analysis Regarding Embedded Images

/ Rob Nussbaum

In a recent case, Nicklen v. Sinclair Broadcast Group, Inc., the United States District Court for the Southern District of New York, rejecting the rationale of a case decided by the United States Court of Appeals for the Ninth Circuit in 2007, denied a defendant’s motion to dismiss a complaint filed by plaintiff who posted a video on Instagram and Facebook only to have defendants embed the video in an online article posted on their websites without having first obtained a license from plaintiff.

The case involved video footage shot by plaintiff, the author and registered owner of a video showing an emaciated polar bear wandering around the Arctic. The plaintiff posted the video to his Instagram and Facebook accounts along with a caption which advised others seeking to use the content commercially to obtain a license to do so. Defendants published an article on their websites about starving polar bears and, using a Facebook and Instagram embedding tool, included the plaintiff’s video in their article without having first obtained a license. Defendants failed to remove the video from their websites after plaintiff sent a takedown notice, leading plaintiff to file a lawsuit which claimed that defendants “infringed his exclusive reproduction, distribution, and display rights” under U.S. copyright law.

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An Attorney’s Consequences for Making Injudicious Comments on Social Media

/ Rob Nussbaum

In a 28 page decision issued earlier this year, which the Supreme Court of Tennessee described as “a cautionary tale on the ethical problems that can befall lawyers on social media,” the court increased a lawyer’s 60 day suspension from practicing law to a four year suspension because of comments the lawyer made on Facebook.  The comments instructed one of the attorney’s Facebook friends on how to shoot a person she had broken up with and to make the shooting appear to be one done in self-defense.

Although the Facebook posts were ultimately removed at the lawyer’s urging (in another Facebook post he made), screenshots captured by the potential shooting victim were brought to the attention of the county district attorney general, who, in turn passed them along to the Tennessee Board of Professional Responsibility (“Board”).  The Board investigated and found that the attorney’s advice about how to engage in criminal conduct and avoid arrest or conviction violated RPC 8.4 (a) and 8.4(d) of Tennessee’s Rules of Professional Conduct and, following a hearing, the Board’s hearing imposed a 60 day suspension of the lawyer’s license to practice law.

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Social Media Platforms Score Another First Amendment Victory

/ Rob Nussbaum / 2 Comments

The January 16, 2019 and April 8, 2020 Trending Law Blog posts discussed cases in which the central issue was whether private entities (i.e., the operator of a public access television station and YouTube, respectively) could be deemed “state actors” — persons acting on behalf of a governmental body – for purposes of the First Amendment. In both cases, the courts held that the First Amendment does not prohibit the private abridgement of speech. On May 27, 2020, the United States Court of Appeals for the District of Columbia Circuit reached a similar decision in Freedom Watch, Inc., et al. v. Google Inc., et al.

In Freedom Watch, the plaintiffs, a conservative political interest group and political activist, alleged, among other things, that Google, Facebook, Twitter, and Apple “conspired to suppress conservative political views and violated the First Amendment.” The court of appeals rejected this claim, finding the plaintiffs did not adequately allege that the defendants could violate the First Amendment. The court stated:

In general, the First Amendment “prohibits only governmental abridgement of speech.” Manhattan Cmty. Access Corp. v. Halleck,139 S.Ct. 1921, 1928 (2019). Freedom Watch contends that, because the [Defendants] provide an important forum for speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” Id. at 1930. Freedom Watch fails to point to additional facts indicating that these [Defendants] are engaged in state action and thus fails to state a viable First Amendment claim.

Although the court of appeals did not elaborate on what additional facts could have been alleged to establish that a private entity can be deemed a state actor for purposes of the First Amendment, the court did implicitly suggest that such facts could be alleged.

It remains to be seen when a court might hold that private entities can be sued for First Amendment violations, but, for now at least, that day has not yet arrived.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Social Media and the Code of Judicial Conduct

/ Rob Nussbaum

On June 16, 2020, a 4-3 majority of the Supreme Court of Wisconsin ruled that a judge’s decision to become friends on Facebook with a woman whose child custody case the judge was hearing created the appearance of bias. The Wisconsin court found the judge’s conduct violated the other litigant’s right to due process because “the extreme facts of this case rebut the presumption of judicial impartiality.” The court also strongly urged Wisconsin judges to “weigh the advantages and disadvantages of using electronic social media like Facebook.” In contrast, the Supreme Court of Florida (also in a 4-3 decision) held in a 2018 decision that it was all right for judges to be Facebook friends with attorneys who have cases before them. In reaching that decision, the court noted that a Facebook friendship “does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’” and that “not every relationship characterized as a friendship provides a basis for disqualification.”

To date, there have been no New Jersey court decisions or ethics opinions written about how judges in New Jersey should use social media. However, two of the seven Canons of the New Jersey Code of Judicial Conduct, which can be found in the Appendix to Part I of the New Jersey Court Rules, seem to suggest that if judges do make use of social media, they should do so very carefully.

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