The Titanic’s Connection to Electronic Communications Privacy

One hundred years ago this weekend, the RMS Titanic hit an iceberg off the coast of Newfoundland and sank. The event was big news then and has remained so for a century, due in no small part to the number of wealthy people who died or were aboard: John Jacob Astor IV; Lucy, Lady Duff-Gordon; Molly Brown; Benjamin Guggenheim; and Isidor Straus. It was a bit as if the Kodak Theatre caught fire during the Academy Awards. (Compare the Titanic to the RMS Empress of Ireland, which sank in the mouth of the St. Lawrence two years later with a loss of more passengers, although considerably fewer crew. Celine Dion sings no songs about the Empress of Ireland.)

There are many fascinating aspects of the story, including the recently uncovered evidence of what exactly caused the ship to sink — not a massive gash in its hull, as had long been supposed, but rather a buckling of the plates over five compartments, due in part to the failure of potentially substandard rivets. For want of a rivet, the Titanic was lost. And there’s also the interesting question of why there was so little panic among the passengers as the ship went down. But I want to focus on one that I’m fairly sure is not going to get covered this week: the connection between the sinking of the Titanic and our modern Electronic Communications Privacy Act, the federal law that makes it a crime to intercept communications without either a court order or the consent of one of the parties.

The connection stems from the role of “wireless telegraphy” — radio, as it’s now known — in the Titanic disaster.

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Can a Prospective Employer Request Facebook Login Information?

I’ve been remiss in posting on the recent stories about potential employers requesting social networking login information in job interviews, but I see that noted cybercrime expert Orin Kerr, a law professor at George Washington University, was on C-SPAN’s Washington Journal this morning, and his comments in the first few minutes of this recording basically sum up what I had to say on this issue: it’s unclear, but such activity may be prohibited by federal law. I just have one additional point to add: although the specific policy result here may seem obvious, the larger question of when use of a dodgily-obtained password violates unauthorized access statutes is actually a much more difficult one.

The civil case Orin refers to in the recording is Pietrylo v. Hillstone Restaurant Group, No. 06-5754 (FSH), 2009 WL 3128420, 2009 U.S. Dist. LEXIS 88702 (D.N.J. Sept. 25, 2009). In Pietrylo, the District of New Jersey upheld a jury verdict against the defendant employer under the Stored Communications Act, 18 U.S.C. § 2701, which prohibits any person from “intentionally access[ing] without authorization a facility through which an electronic communication service is provided . . . and thereby obtain[ing], alter[ing], or prevent[ing] authorized access to a wire or electronic communication while it is in electronic storage in such system.” Pietrylo and other employees participated in a private chat group on MySpace in which they were critical of Hillstone management. One of the managers requested that one of the participants give him her password, which she did, on the reasonable supposition that she “felt that [she] probably would have gotten in trouble” if she refused.

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The Right to Violent Video Games

This week, the U.S. Supreme Court struck down a California law banning the sale of violent video games to children.  In Brown v. Entertainment Merchants Association, 564 U.S. 1 (2011), the Court held that the First Amendment right to free speech protects the video games.  As I predicted last November in a blog post on the oral argument in this case, Justice Scalia did not favor upholding the law, and indeed he wrote the majority opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Alito and Chief Justice Roberts wrote a separate opinion, concurring in the judgment, while only Justices Thomas and Breyer dissented.

So what’s to like – or at least protect – about violent video games?  The opinion is clear that video games are protected by the First Amendment.  Although the Court notes that the Free Speech Clause exists primarily “to protect discourse on public matters,” it has long been “recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”  The Court notes that there are plenty of examples of political commentary or even propaganda to be found in fiction.  The Court goes on to state that last term’s opinion in United States v. Stevens controls.  Stevens struck down a statute that criminalized the creation, sale, or possession of specified types of depiction of animal cruelty, and Scalia summarized the holding thusly: “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” (564 U.S. at 3)  Here, the California legislature tried to characterize the regulation of violent video games as dealing with a type of obscenity, and the majority states that violence is different from obscenity, and therefore it is irrelevant that Ginsberg v. New York allowed the state to apply an age-adjusted standard for its restriction on the sale of obscene materials to minors.  The Court says that California tried “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”  “That,” says the Court “is unprecedented and mistaken.” (564 U.S. at 7)

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