Communications and Internet Law

Overview

Media may be broadly grouped into two categories: print media, which includes newspapers, magazines and books, and telecommunications media, which includes radio, television, wire, satellite, cable, and the Internet. Some media laws—such as the First Amendment, state defamation and invasion of privacy laws, and federal and state open government laws—impact all forms of media. Other media laws, such as Federal Communications Commission (FCC) regulations, target only telecommunications.

First Amendment: Freedom of the Press

The First Amendment to the U.S. Constitution provides that "Congress shall make no law...abridging the freedom...of the press." This provision now protects the freedom of the press from government interference, subject to some limitations. Judicial precedent has given Congress the authority to balance competing interests and create some limitations on free speech. For example, the FCC regulates obscene and indecent speech on the radio and television.

Reporters' Privilege: Shield Laws

A reporters' privilege refers to the limited First Amendment right many jurisdictions in the United States have given to journalists. This privilege, which comes from statutory law or judicial decisions, allows journalists to protect their confidential sources from disclosure and varies by state as to who may assert the privilege, what types of confidential information are protected, and the types of proceedings during which the privilege may be asserted.

Traditionally, states have only extended the reporters' privilege to individuals working for mainstream news media organizations. However, in California, an appeals court ruled that the same shield laws that protect print and broadcast journalists also protect online reporters, commentators and bloggers.

No federal shield law exists. In recent years, journalists have pressed Congress harder for one, particularly in the wake of the Central Intelligence Agency (CIA) leak scandal, in which federal investigators subpoenaed reporters who learned the name of undercover CIA agent Valerie Plame in order to learn what government sources leaked the information to the press. The reporters refused to comply with the federal grand jury subpoenas, asserting reporters' privilege. However, the courts rejected the claims for privilege and jailed reporter Judith Miller of The New York Times for not complying with the subpoena. Congress took up the issue of reporters' privilege in 2005 with the introduction of the Free Flow of Information Act of 2005, a shield law designed to protect reporters who seek to protect their anonymous sources in federal court proceedings. The bill did not become federal law and reporters may not rely on a reporters' privilege to avoid federal subpoenas.

The U.S. Department of Justice adheres to self-imposed guidelines for use of subpoenas, which are intended to protect the press by requiring that "all reasonable attempts should be made to obtain information from alternative sources" before issuing a subpoena to a journalist.

Federal Regulation of the Media

Several federal statutes seek to ensure the freedom of the press guaranteed by the First Amendment, such as the Freedom of Information Act and the Privacy Act. The Freedom of Information Act of 1966 (FOIA) applies to the federal government and allows citizens or organizations to request information from federal sources. This law specifies procedures for applying for documents from federal agencies, which are subject to penalties for failing to process a petition for information. FOIA has nine exemptions that may prevent the release of some information, such as those protecting individuals' privacy and national security interests. The Privacy Act of 1974 is a similar federal law that provides access to government documents.

The Communications Act of 1934 (47 U.S.C. § 151 et seq.) created the Federal Communications Commission (FCC), which regulates interstate and foreign communications by radio, television, wire, satellite, and cable. The FCC replaced the Federal Radio Commission, created by the 1927 Radio Act, in order to combine telecommunication regulation of all wired and wireless services. FCC jurisdiction covers all 50 states, the District of Columbia, and U.S. possessions, and it is responsible for processing applications for radio and television station licenses and other filings, addressing listener and viewer complaints, conducting investigations, and developing and implementing regulations to protect the public interest in the airwaves. Separate branches of the FCC oversee different forms of media.

Congress overhauled the Communications Act of 1934 when it enacted the Telecommunications Act of 1996 with the goal of deregulating the telecommunication industry. The new law created comprehensive regulations for radio and television broadcasting, cable television and telephone services, Internet and on-line computer services, and telecommunications equipment manufacturing. In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA), which prohibits the making or selling of devices or services that are used to circumvent copy protection methods.

Media Regulation by States

State laws commonly affecting the media involve actions in tort for defamation, which is an untrue statement communicated to another person that harms the reputation of a person or organization, including attacks on a person's integrity, honesty, or virtue, resulting in public contempt, ridicule, or financial injury. Defamation can take two forms: libel, which is a printed form of the harmful statement; or slander, which is spoken. If a defamatory publication by the media harms a person's reputation, he or she may be entitled to money damages against the news organization. It is much easier for a private citizen to prove that his or her reputation has been harmed by libel or slander than a public official or public figure. Corporations may also sue for harm to their reputation caused by the media. Government agencies generally cannot sue for defamation.

Although the First Amendment guarantees press freedom, members of the news media must still comply with state and federal laws while reporting stories. State law and judicial decisions regulate acts committed by journalists, such as fraud, trespass, intrusion, eavesdropping and wiretapping, while reporting their stories.

All states also have passed their own, varying versions of the Freedom of Information Act that require disclosure of state and local government records, sometimes called "sunshine laws." Many states also have enacted open meetings laws. Open meetings laws do not always allow all citizens to attend meetings of state and local governments and regulatory authorities, but they do provide that media and representatives of the public can attend, and that the decisions and records be made available to the public. Some states combine their laws providing access to government records and meetings, and some states offer much broader access than others.

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Featured Cases

PA Advisors, LLC v. Google Inc. et al
Plaintiff PA Advisors, LLC allege that Defendants infringed no U.S. Patent No. 6,199,067 entitled "System and Method for Generating Personalized User Profiles and for Utilizing the Generated User Profiles to Perform Adaptive Internet Searches."
Texas Eastern District Court
Patent
Filed: November 2, 2007
Plaintiff: PA Advisors, LLC, PA Advisors, LLC, PA Advisors, LLC, PA Advisors, LLC, PA Advisors, LLC and others... Defendant: Google Inc., Google Inc., Google Inc., Yahoo! Inc., Yahoo! Inc. and others...
Last Docket Filed: February 9, 2010
(February 8, 2010)
The Author's Guild et al v. Google Inc.
Plaintiffs The Author's Guide. Herbert Mitgang, Betty Miles and Daniel Hoffman sued Google Inc. for reproducing a digital copy of plaintiffs' works without the copyright holders' permission and in violation of the authors' rights under the copyright laws.
New York Southern District Court
Copyright
Filed: September 20, 2005
Plaintiff: The Author's Guild, The Author's Guild, The Author's Guild, The Author's Guild, The Author's Guild and others... Defendant: Google Inc., Google Inc., Google Inc., Google Inc., Google Inc.
Last Docket Filed: February 5, 2010
(February 4, 2010)
Aloft Media, LLC v. Oracle Corporation et al
Texas Eastern District Court
Plaintiff
Filed: July 14, 2009
Plaintiff: Aloft Media, LLC Defendant: Oracle Corporation, Oracle USA, Inc., Yahoo! Inc., Google, Inc., Fair Isaac Corp. and others...
Last Docket Filed: February 5, 2010
(February 4, 2010)
Beneficial Innovations, Inc. v. Careerbuilder, LLC et al
Texas Eastern District Court
Plaintiff
Filed: June 1, 2009
Plaintiff: Beneficial Innovations, Inc. Defendant: Careerbuilder, LLC, CNET Networks, Inc., The Dallas Morning News, Inc., Digg, Inc., Ebaum's World, Inc. and others...
Last Docket Filed: February 5, 2010
(February 4, 2010)
Perfect 10 Inc v. Google Inc et al
Plaintiff Perfect 10 sued defendant Google Inc. for displaying thumbnails of photographs copyrighted by the plaintiff. Consolidated with Perfect 10 Inc. v. Amazon.com Inc. et al. Additional Resources Ninth Circuit Opinion in Perfect 10 v. Google and Amazon.
California Central District Court
Copyright
Filed: November 19, 2004
Plaintiff: Perfect 10 Inc; Defendant: Google Inc, DoesCounter Claimant: Google Inc, Counter Defendant: Perfect 10 Inc
Last Docket Filed: February 4, 2010
(February 3, 2010)

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Legislation

Bill Signed by President: S.602 Child Safe Viewing Act of 2007
A bill to develop the next generation of parental control technology.
December 02, 2008: Signed by President.
(November 30, 2008)
Bill Enacted: H.R.7084 Webcaster Settlement Act of 2008
To amend section 114 of title 17, United States Code, to provide for agreements for the reproduction and performance of sound recordings by webcasters.
October 16, 2008: Became Public Law No: 110-435.
(October 14, 2008)
Bill Enacted: H.R.928 Improving Government Accountability Act
To amend the Inspector General Act of 1978 to enhance the independence of the Inspectors General, to create a Council of the Inspectors General on Integrity and Efficiency, and for other purposes.
October 14, 2008: Became Public Law No: 110-409.
(October 12, 2008)
Bill Enacted: S.3477 Presidential Historical Records Preservation Act of 2008
A bill to amend title 44, United States Code, to authorize grants for Presidential Centers of Historical Excellence.
October 13, 2008: Became Public Law No: 110-404.
(October 11, 2008)
Bill Enacted: S.3325 The Enforcement of Intellectual Property Rights Act of 2008
A bill to enhance remedies for violations of intellectual property laws, and for other purposes.
October 13, 2008: Became Public Law No: 110-403.
(October 11, 2008)

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Regulations

Rule - Revisions to Rules Authorizing the Operation of Low Power Auxiliary Stations in the ...
Federal Communications Commission
Rule
Revisions to Rules Authorizing the Operation of Low Power Auxiliary Stations in the 698-806 MHz Band:
Public Interest Spectrum Coalition, Petition for Rulemaking Regarding Low Power Auxiliary Stations, etc.
,
6316-6318 [2010-2779]
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 2 [WT Docket No. 08-166, 08-167; ET Docket No. 10-24; FCC 10-16] Revisions to Rules Authorizing the Operation of Low Power Auxiliary Stations in the 698-806 MHz Band; Public Interest Spectrum Coalition, Petition for Rulemaking Regarding Low Power Auxiliary Stations, Including Wireless Microphones, and the Digital Television Transition AGENCY: Federal Communications Commission. ACTION: Correcting amendments. SUMMARY: On January 15, 2010, the... [read document]
View Document | Download PDF
(February 8, 2010)
Proposed Rule - California Public Utilities Commission Petition for Rulemaking
Federal Communications Commission
Proposed Rule
California Public Utilities Commission Petition for Rulemaking
,
6339-6340 [2010-2772]
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 4 [ET Docket No. 04-35, RM 11588, DA 10-220] California Public Utilities Commission Petition for Rulemaking AGENCY: Federal Communications Commission. ACTION: Petition for rulemaking. SUMMARY: The California Public Utilities Commission (``CPUC'') filed a Petition for Rulemaking requesting that the Federal Communications Commission (Commission or FCC grant State public utilities commissions direct access to the Commission's Network Outage Reporting... [read document]
View Document | Download PDF
(February 8, 2010)
Rule - Maritime Communications
Federal Communications Commission
Rule
Maritime Communications
,
5241 [2010-2095]
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 80 [WT Docket No. 04-257 and RM-10743; FCC 10-6] Maritime Communications AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In this document, the Federal Communications Commission (Commission or FCC) furthers its ongoing efforts to ensure that its rules governing the Maritime Radio Services continue to promote maritime safety, maximize effective and efficient use of the spectrum available for maritime communications,... [read document]
View Document | Download PDF
(February 1, 2010)
Rule - In the Matter of Procedural Amendments to Commission Part 1 Competitive Bidding Rules
Federal Communications Commission
Rule
In the Matter of Procedural Amendments to Commission Part 1 Competitive Bidding Rules
,
4701-4703 [2010-1878]
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [WT Docket No. 10-18; FCC 10-4] In the Matter of Procedural Amendments to Commission Part 1 Competitive Bidding Rules AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Commission makes two procedural amendments to its competitive bidding rules. The Commission amends the rule specifying how to report potential violations of the prohibition on certain communications in order to reduce the risk that bidding-related... [read document]
View Document | Download PDF
(January 28, 2010)
Proposed Rule - Review of Emergency Alert System
Federal Communications Commission
Proposed Rule
Review of Emergency Alert System
,
4760-4768 [2010-1941]
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 11 [EB Docket No. 04-296; FCC 10-11] Review of the Emergency Alert System AGENCY: Federal Communications Commission. ACTION: Notice of proposed rulemaking. SUMMARY: In this document, the Commission adopted a document seeking comment on its proposal to amend the Commission's rules governing the Emergency Alert System (EAS) rules to provide for national EAS testing and collection of data from such tests. The purpose of this testing and data collection... [read document]
View Document | Download PDF
(January 28, 2010)

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Articles

Discriminatory Housing Advertisements On-Line: Lessons from Craigslist
Indiana Law Review, Vol. 43, University of Missouri School of Law Legal Studies Research Paper No. 2010-03 Rigel Christine Oliveri University of Missouri School of Law Date Posted: February 9, 2010 Last Revised: February 9, 2010
(February 8, 2010)
Losing Face: An Environmental Analysis of Privacy on Facebook
Chris Peterson National Center for Technology and Dispute Resolution Date Posted: February 9, 2010 Last Revised: February 9, 2010
(February 8, 2010)
The One-Sided Voidability of Contracts Impacted by 47 U.S.C. Â§ 230
Lynn C. Percival IV Campbell University School of Law Date Posted: January 26, 2010 Last Revised: February 8, 2010
(February 7, 2010)
Information as IP Subject Matter
Zohar Efroni Stanford's Center for Internet and Society Date Posted: February 2, 2010 Last Revised: February 8, 2010
(February 7, 2010)
Data Protection: The New Technical and Political Environment
Computers & Law, Vol. 21, No. 1, February 2010 Ian Brown University of Oxford - Oxford Internet Institute Date Posted: February 7, 2010 Last Revised: February 7, 2010
(February 6, 2010)

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