Kudos to the New Jersey Supreme Court.  Last week, the court ruled that ISPs can’t release personal information about their New Jersey users without a valid subpoena.  The court, in a unanimous 7-0 ruling, found that the New Jersey Constitution gives its residents greater protection against unreasonable searches than the U.S. Constitution does.  In the case before the court, the court ruled that the police were required to first obtain a grand jury subpoena before learning a woman’s identity from an ISP.  Her ISP apparently released this information at the request of the police. 

This is an important decision.  First, the New Jersey Supreme Court is one of the more highly regarded state courts in the United States.  Other state courts wrestling with these types of issues will undoubtedly look to see how the New Jersey court decided this case.  Second, it illustrates the continued rise of “state constitutionalism.”  People typically don’t realize that the federal constitution sets a “floor” on a person’s constitutional rights, not a “ceiling.”  In other words, a state court can’t rule that its state’s constitution gives less protection than the federal one does, but can find that the state constitution gives more—at least to its own residents.

Given the perception that the U.S. Supreme Court is less friendly (and somewhat hostile) to privacy rights—especially when it comes to the rights of law enforcement to obtain personal data in these post-9/11 times—combined with the continued paralysis in Congress over individual privacy rights, a ruling from a state’s highest court on issues such as this serves as an implicit rebuke at the lack of leadership at the federal level.  While it’s only one state so far that has now recognized a reasonable expectation of privacy for internet users, it’s got to start somewhere.  Let’s hope other states follow suit.  

France once again reminds us how fortunate we are to live in a truly free country, where freedom of speech is often taken for granted.  Apparently, France is in the process of trying to pass a law to ban what it deems to be “pro-anorexia” websites and publications.  The new law would impose jail sentences of 2 to 3 years and impose fines of 30,000 euros ($47,400) to 45,000 euros ($71,100) on anyone who violates the law.  The legal standard is dubious (if not laughable):  ”Incitement to excessive thinness by publicising of any kind.”

According to the French health ministry, 90% of the country’s estimated 30,000 to 40,000 anorexics are young women, who are supposedly under constant pressure from the fashion, advertising, and movie industries to attain unhealthy weight levels.  No one will deny that encouraging young, impressionable girls to starve themselves, vomit, lie to doctors, and take appetite suppressants are bad things.  But the idea of trying to ban and fine websites—and jail the site operators—is a draconian cure that’s worse than the disease. 

And talk about a slippery slope.  What’s next?  How about sites that encourage excessive weight gain? Or consumption of fried foods?  Or excessive exercise (surely that’s killed quite a few people)?  And how does one even define “excessive thinness” anyway, let alone “incitement”?  The French ban doesn’t have quite the same urgency to it as the “incitement to imminent lawless action” standard articulated by the Supreme Court in Brandenburg v. Ohio to ban certain speech in extraordinary situations.  While encouraging anorexia is appalling, it certainly doesn’t rise to the level of mandating censorship.  The French government may be asking the right questions, but it’s getting the wrong answers. 

Of course such a law could never be passed in America.  Or rather, it could never go into effect.  It would be struck down by the courts so quickly on content discrimination, overbreadth, and/or vagueness grounds that the ink wouldn’t have time to dry.  Our democracy subscribes to the “marketplace of ideas” concept which provides that a free exchange of ideas will allow for the creation of the best policies and practices.  Quite simply, the cure for bad speech is good speech—or at least, more speech.  (While our government can curtail advertising for things such as smoking and alcohol, “commercial speech” is subject to some restriction and regulation.)

This isn’t the first time that France has demonstrated its tendency towards censorship.  In November of 2000, a French court ordered Yahoo! to stop selling Nazi memorabilia to French internet shoppers on auction sites due to France’s law that banned incitement of racial hatred.  (The French do like that “incitement” standard, don’t they?) Of course, this is the same country that passed a law banning the use of foreign words on television shows, radio broadcasts, business communications, and public service announcements if the French language had a “suitable local equivalent” which could be used instead.  What chutzpah!  What cojones!  Oh well, c’est la vie . . . .

Talk about a slow news day.  A recent article in USA Today discusses the so-called “fine print” in ISP contracts and then concludes that it doesn’t really matter anyway.  This non-story highlights the fact that ISP contracts, which their company lawyers draft, give ISPs rights to read their subscribers’ e-mail, block their subscribers from accessing certain websites, and can terminate their subscribers for overusage of their networks.  The horror.  Imagine that?  A business that protects itself.  The shareholders will be outraged.

As an attorney who drafts these contracts, this article is much ado about nothing.  Yes, ISPs put all sorts of language into these agreements to make sure that their services are not abused by users.  But simply because an ISP has the right to read a user’s e-mail or block a user from accessing certain sites doesn’t mean that it will actually do so.  The article makes it sound inevitable.

An ISP, like every other business in America, is keenly aware of the public relations disaster that would result if it was disclosed that they routinely read their users’ e-mails, blocked access to websites, or simply terminated their users accounts due to overusage, without good cause.  They would quickly and perhaps permanently lose users as the media and blogosphere savaged them.  And as they know all too well, everything in cyberspace lives on indefinitely. 

But think of the public relations disaster that would result if it was disclosed that an ISP was aware or suspected that a user was engaging in wide scale spamming, copyright infringement, or the downloading of child pornography.  Or that certain users were hogging bandwidth to the point that other subscribers’ service was affected, while the ISP took a laissez-faire attitude?  It’s not exactly a model of corporate responsibility in these post-Sarbanes Oxley times.  The blogosphere would again be buzzing, albeit for different reasons.  You’re damned if you do, and damned if you don’t.

Furthermore, some of these clauses are economic necessities.  The RIAA has begun targeting ISPs whose users engage in massive and sustained downloading of copyrighted music through their networks.  If an ISP suspects that a user is downloading copyrighted material and does nothing, it can be held liable for contributory copyright infringement in certain instances.  But by terminating the offending user’s account, it may insulate itself from liability.  The “fine print” of the contract allows an ISP to do so.

Is an ISP contract really that different from signing a lease with a landlord?  A landlord has the right to access your apartment with or without notice and can potentially invade your privacy.  A landlord puts certain restrictions as to how its property can be used and how many people can live in it.  And a landlord can evict you under the right circumstances.  While internet access is certainly important nowadays, so is having a place to live.  Yet many tenants have rules not unlike what their ISPs impose, but don’t assume that their landlords will exercise them indiscriminately.

So the contractual provisions such as those described in the article are not necessarily a bad thing.  It all depends upon the circumstances.  If an ISP does include a provision that a court finds to be unfair or onerous, it can be struck from the contract (to say nothing of the scrutiny the ISP would get from that state’s attorney general).  So it’s not as if an ISP can do anything it wants.  While it may sound like this is a case of “ISPs gone wild,” the simple fact is that—for the moment at least—this was an article in search of a story.  But when an ISP does overreach or overreact, I’m sure we’ll hear about it somehow.

     A Pennsylvania couple recently added their names to the long list of people who have sued Google.  Aaron and Christine Boring, who own a home in Pittsburgh, have filed suit against Google after learning that their house appears on Google’s controversial “Street View” feature, which allows its users to see an actual street-level view of a particular road, including all of the homes, apartments, people, and anything else that appears on it.  The Borings claim that Google violated their privacy, devalued their property, and caused them mental distress.

      This isn’t the first time that the Street View feature has raised privacy concerns, both here or abroad, when it made its debut last year.  Still, the Borings’ suit illustrates the shape of things to come with respect to the growing conflict between privacy rights and First Amendment rights.  Expect more lawsuits like this, especially as sites like Google continually roll out more and more features to provide detailed and information-rich experiences for their users.

     By and large, there’s no expectation of privacy on a public street, so Google hasn’t broken any laws.  Anybody and their property can be photographed on a public street at any time.  And the company does provide a means by which people can submit a request that certain images be removed.  Nevertheless, it’s still a bit creepy and just because a company has the right to do something doesn’t mean that it should do it.  Unless you’re Google—who has piles and piles of money.

      Of course, the problem with suing the 800 pound gorilla is that the gorilla has the resources to fight back.  And Google isn’t exactly known for rolling over and writing large checks to make litigants go away.  But despite Google’s claim that there’s no merit to the lawsuit—a common response from the company—the Borings’ case may have some teeth to it.  It appears that Google may have trespassed onto the Borings’ property in order to take the picture.  If so, then Google may indeed be in the wrong. 

    Damages, however, are another matter.  Assuming that the Borings’ privacy was violated, it’s hard to see how a picture of their home—which has apparently since been removed by Google—has either devalued their property or caused them mental suffering (which usually has to be severe in order to be compensable).  So if there are damages here, they seem somewhat nominal in nature.  But as any trial attorney knows, when you have either a sympathetic plaintiff or,  as in this case, an unsympathetic defendant (or both),  and a potentially unpredictable jury which may have the ability to award punitive damages, discretion on Google’s part may indeed be the better part of valor.  So perhaps the case will go away quietly.  Until the next one pops up.