Media Law Monitor

PG. 04 "F--- school, f--- softball, f--- cheer, f--- everything"

PG. 04 Biden Administration Rescinds Trump's TikTok and WeChat Bans

PG. 05 Senators Propose Substantial Revisions to Section 230

PG. 11 Washington State Passes New Anti-SLAPP Statute

medialawmonitor Fall 2021

Media, Technology, and First Amendment Legal Developments from Davis Wright Tremaine LLP

Obfuscating Mercy: How the California Supreme Court Finally Addressed Secretive Pardons

I

n May of 2021, the California Supreme Court in Administrative Order 2021-05-26 announced a rule

change to make it easier for the public to view clemency files for twice-convicted felons. The new rule rejects the decades-old practice of California governors automatically sealing clemency files, but places the onus on the public to move for unsealing.

A quirk of the California Constitution requires a governor to obtain state Supreme Court approval before pardoning or commuting the sentence of any person who has been convicted of two or more felonies. Cal. Const. article V, § 8.

By Selina MacLaren and Thomas R. Burke

The purpose of the constitutional requirement, according to the Court, is to “provide a check on potential abuses of the power conferred on the executive.” Admin. Order 2018-03-28.

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Editors-at-Large

Governors satisfy the oversight

Because of the dual convictions,

requirement by submitting a clemency

Brown needed approval from the

file, often hundreds of pages long, to

Supreme Court. The summary on

the state Supreme Court. The file may

the public docket (Wright (Roderick

Cydney Swofford Freeman | LA

contain the applicant’s prison records,

Devon) on Clemency, S251879)

a recommendation from the Board of

explained that Wright’s convictions

Contributors

Parole Hearings, and letters of support

were for nonviolent crimes and

from the community. Historically,

emphasized his public service. Aside

this entire file was automatically kept

from this summary, the public was not

under seal, creating a de facto “secret

given access to any of the materials

docket” at the state’s highest court.

considered by the Supreme Court. The

Ambika Kumar | SEA Abigail B. Everdell | NY Nathan Siegel | WDC

Katherine M. Bolger Michael T. Borgia John M. Browning Thomas R. Burke Julie Capell Robert Corn-Revere Kelly M. Gorton David M. Gossett Bruce E. H. Johnson Caesar Kalinowski IV Ambika Kumar Selina MacLaren James Rosenfeld Christopher W. Savage John D. Seiver Arielle Spinner Eric M. Stahl

file—later revealed to be nearly 300

" Before 2018, approval [of governors' pardon requests] by the California Supreme Court was effectively a formality: the Supreme Court had not denied a single [governor's pardon] request since 1930."

media@dwt.com | 877.398.8417 Media Law Monitor brought to you by:

Our attorneys have decades of experience in the areas of communications, media, information technology and intellectual property. We represent clients across all media, from traditional print media and established electronic mass media to the next generation of technology. We have received a No. 1 ranking in Media Law and First Amendment from “Best Lawyers in America,” and our nationwide media group has received an Award for Excellence from Chambers USA. Many of our individual lawyers also have been named as “America’s Leading Lawyers” in their communications and media specialties by Chambers USA and have been awarded the highest recognitions from the industries they serve.

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pages long—was entirely under seal.

FAC’s Motions On November 20, 2018, two things happened: the Supreme Court granted Wright’s clemency recommendation, and the First Amendment Coalition (“FAC”) moved to unseal the file.

The California Rules of Court impose requirements for filing court records under seal. Under these rules, sealing is appropriate only to the extent necessary to protect an “overriding

Before 2018, approval by the California

interest” that cannot be protected

Supreme Court was effectively a

any other way. Cal. Rules of Court,

formality: the Supreme Court had not

Rule 2.550. In addition, the common

denied a single request since 1930.

law and article 1, section 3(b)(1) of

But in the final months of Governor

the California Constitution mandate

Jerry Brown’s tenure, the Supreme

public access to judicial records. FAC

Court denied 10 requests, baffling

argued that these rules should apply

judicial observers. The 10 rejections

to clemency records, just as they

thus suggest that the Supreme Court

apply to other records submitted to a

determined Brown had abused his

California court.

power. But because of the categorical secrecy for clemency files, the details remain unknown.

The Case of Rod Wright In 2018, Governor Brown sought to pardon former state legislator Rod

The governor broadly opposed FAC’s motion. The Supreme Court sided with FAC, ordering Governor Brown to resubmit the clemency file “in the manner prescribed by Rules 8.45, 8.46 and 8.47 of the California Rules of Court.”

Wright. Wright was convicted in

After some motions practice related

1972 for felony auto theft and again

to proposed redactions, the Wright

in 2014 for charges related to living

clemency file was finally released

outside his elected district. Wright

to the public five months after the

was sentenced to 90 days in jail for

governor had submitted it to the

his 2014 conviction but served about

Supreme Court. These records

90 minutes.

shed light on critical aspects of the

FALL 2021

03

pardon, including the investigation

On the one hand, pro-access groups

With a little legwork, judicial observers

by the Board of Parole Hearings that

criticized the rule for requiring a

can now learn more about what it takes

determined Wright deserves clemency,

member of the public to affirmatively

to get a pardon or commutation by

statements of support from several

file a motion to unseal. In addition,

monitoring the Supreme Court’s docket

“prominent political leaders,” as well as

the Supreme Court will not entertain

and submitting motions to unseal.

an opposition from the district attorney

motions filed after the recommendation

Transparency may improve the odds

who prosecuted Wright.

is granted. Because this process can

for those seeking clemency and reduce

take any length of time (three to four

the likelihood of abusive, unwarranted

months is typical), the public must file

political pardons.

The Saga Continues In the Wright matter, the Supreme

motions in a rush.

On the other hand, some criminal justice

Thomas Burke, Rochelle Wilcox and

groups emphasized that clemency

Selina MacLaren served as counsel to

clemency files. Yet Governor Brown—

files can contain sensitive records. The

the First Amendment Coalition.

and subsequently, Governor Newsom—

Supreme Court’s response to these

continued to submit all clemency files

concerns was to allow for case-by-case

under seal.

redactions, but it rejected “a rigid rule

Court clarified three separate times that California’s access rules apply to

From December 2018 to May 2020, FAC filed seven more motions to unseal.

Each time, the governor (represented by the Attorney General’s office) opposed.

In every instance, the Supreme Court repeated its holding in the Wright matter and ordered the governor to resubmit the file. Eventually, FAC requested a global order that would apply to all clemency matters going forward.

" On May 26, 2021, the California Supreme Court implemented a new rule that clarifies the Court will no longer categorically treat clemency files as confidential."

A New Rule On May 26, 2021, the California Supreme Court implemented a new rule that clarifies the Court will no longer categorically treat clemency files as confidential. Admin. Order 2021-05-26.

Instead, when a member of the public submits a motion to unseal, the governor must resubmit the file in conformity with the Court’s access rules.

While the new rule provides clarity, it is not without its critics.

shielding from public inspection” entire categories of documents.

Next Steps On July 7, 2020— after two and a half years of litigation—Governor Newsom released over a thousand clemency records. But these records only scratch the surface. A multitude of clemency files have been filed—and continue to be filed—under seal.

Selina MacLaren is an associate in the Los Angeles office of Davis Wright Tremaine.

Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine.

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"F--- school, f--- softball, f--cheer, f--- everything," Except First Amendment Protections for Student Speech

By Robert Corn-Revere, John D. Seiver, and Caesar Kalinowski IV In June 2021, the U.S. Supreme Court issued its highly anticipated ruling in Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021), upholding students' free speech rights for the first time since 1969. In an 8-1 decision, the Court strongly reaffirmed the landmark case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and held the school could not punish a high school cheerleader's off-campus Snapchat message to friends.

Despite the vulgar nature of the message—"Fuck school fuck softball fuck cheer fuck everything" with an image of the student and her friend with their middle fingers raised—the Court found the teenager's critical opinion of school issues worthy of "robust First Amendment protections." Justice Breyer observed it "might be tempting to dismiss B. L.'s words as unworthy of … robust First Amendment protections," but concluded "sometimes it is necessary to protect the superfluous in order to preserve the necessary." And he identified a key government interest the school administration apparently overlooked: to

Biden Administration Rescinds Trump's TikTok and WeChat Bans, Issues Two Executive Orders Highlighting Policies on Chinese Tech Companies

By Michael T. Borgia, David M. Gossett, Ambika Kumar, Thomas R. Burke, and Kelly Valencia

prepare students for citizenship, "the school itself has an interest in protecting a student's unpopular expression,

In June 2021, President Biden issued two executive

especially when the expression takes place off campus."

orders designed to address risks allegedly posed by

(emphasis added).

Chinese technology companies. One order rescinds President Trump's orders banning TikTok, WeChat,

" [S]ometimes it is necessary to protect the superfluous in order to preserve the necessary" — Justice Stephen Breyer The opinion for the Court avoided creating a bright line rule concerning where the speech occurs. "Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus." Instead, the opinion identified "three features of off-campus speech that often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech." ...continued on page 06

and other Chinese apps—bans that never took effect because they came too late or were enjoined by courts. The other order prohibits U.S. investment in specified Chinese companies that "undermine the security or democratic values of the United States and [its] allies." The two orders from President Biden shift— but do not completely overhaul—U.S. policy toward Chinese technology companies. ...continued on page 07

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Senators Propose Substantial Revisions to Section 230's Protections for Online Providers

By Christopher W. Savage, Ambika Kumar, and James Rosenfeld Earlier this year, three Democratic Senators released the SAFE TECH Act, which aims to require online service providers to address fraud, harassment, and the use of social media to organize extremist violence.

Although the Act appears to have stagnated in Congress, it is still the most viable attempt to amend Section 230 of the Communications Decency Act. And, if passed, it would dramatically change the landscape of online liability.

Background It is no understatement to say the internet would not be what it is today without Section 230. The statute effectively eliminates most ordinary legal responsibilities assumed by traditional publishers with respect to content provided by users and other third parties.

" It is no understatement to say the internet would not be what it is today without Section 230."

Section 230 was in part a response to a 1995 trial court decision that found an internet service provider could be liable for the content of its subscribers' posts, as the publisher of the content. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *6 (N.Y. Sup. Ct. May 24, 1995). The court relied heavily on the fact that the provider advertised its practice of controlling content on its service and actively screened and edited material posted on its message boards.

Congress enacted Section 230 to remove the "grim choice" created by Stratton Oakmont: a provider that voluntarily filtered content would be responsible for all posts, while "providers that bur[ied] their heads in the sand and ignore[d] problematic posts would escape liability altogether." Fair Hous. Council v. Roommates.com LLC, 521 F.3d 1157, 1163 (9th Cir. 2008).

...continued on page 09

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continued from page 04...

the cheerleader's off-campus, critical

"F--- school, f--- softball, f--cheer, f--- everything," Except First Amendment Protections for Student Speech

speech had not substantially disrupted or targeted school functions and therefore "d[id] not meet Tinker's demanding standard."

Justice Alito wrote separately (with

First, the Court examined the right of the school in loco parentis, noting that "geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, the Court held that "courts must be more skeptical of a school's efforts to regulate offcampus speech," noting that "political or religious speech that occurs outside school or a school program or activity" undoubtedly comes with "a heavy burden to justify intervention." Third, the Court reminded educational institutions that "America's public schools are the nurseries of democracy" which "only works if we protect the 'marketplace of ideas'" and "that protection must include the protection of unpopular ideas, for popular ideas have less need for protection."

Justice Gorsuch joining) to clarify the majority's holding. He noted the enormous disparity in treatment that would result if the government could only punish public school students' speech, concluding that attending public schools cannot be conditioned on relinquishing constitutional rights.

He asserted that "[i]f today's decision teaches any lesson, it must be that the regulation of many types of offpremises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory."

Justice Thomas issued the lone dissent, echoing themes he first set forth in his concurring opinion in Morse v. Frederick, 551 U.S. 393, 422-33 (2007)—a case involving a student's "Bong Hits 4 Jesus" sign at a school-sponsored event. Based

" America's public schools are the nurseries of democracy"

on historical analysis and drawing largely

Justice Breyer's opinion departed from

both Tinker and West Virginia State Board

the Third Circuit's reasoning which had relied extensively on where the Snapchat message was typed and sent— in other words, the physical location of the student and/or the student's use of "school-owned, -operated, or -supervised channels." (The Third Circuit had held that "Tinker does not apply to off-campus speech—that is, speech that is outside school-owned,

on 19th century state court decisions, Justice Thomas concluded that public school students lack First Amendment rights and suggested he would reverse of Education v. Barnette, 319 U.S. 624 (1943) (where the Court held that public school students could not be compelled to salute the American flag and recite the Pledge of Allegiance).

Justice Alito directly addressed Justice Thomas's dissent on originalist grounds, noting the dated state court decisions are "of negligible value for present purposes." The concurrence explored

-operated, or -supervised channels and

the doctrine of in loco parentis upon

that is not reasonably interpreted as

which the dissent focused and found

bearing the school's imprimatur".) BL v.

it failed to explain the delegation

Mahanoy Area Sch. Dist., 964 F.3d 170,

of parental authority that occurs in

189 (3d Cir. 2020). The U.S. Supreme

American schools today. For "whatever

Court, however, made clear that such

[the student's] parents thought about

explicit holdings were unnecessary—

what she did," the concurrence noted,

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"it is not reasonable to infer that they

continued from page 04...

Economic Powers Act (IEEPA); that the

gave the school the authority to regulate

Biden Administration Rescinds Trump's TikTok and WeChat Bans, Issues Two Executive Orders Highlighting Policies on Chinese Tech Companies

government had not demonstrated an

her choice of language when she was off school premises and not engaged in any school activity."

" [Alito] noted the enormous disparity in treatment that would result if the government could only punish public school students' speech..."

It remains to be seen how the principles articulated by the Court will apply to future controversies involving offcampus speech and "whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up school community." However, "to justify the prohibition of a particular

actual risk to national security from either app; and that the government had not demonstrated that a flat ban of either app was necessary to address any threat from the apps.) The Biden

ICT Supply Chain Risks, TikTok, WeChat, and the June 9, 2021, Executive Order On June 9, 2021, President Biden issued an order that rescinds President Trump's 2020 bans of TikTok and WeChat and builds on a 2019 order concerning U.S. critical information and communications

Administration never implemented the third Trump order.

" President Biden relied on the declared national emergency as the basis for the June 9, 2021, order—but took a different approach."

technology (ICT). See, e.g., https:// www.nytimes.com/2021/06/09/us/

Rather than rescind or change

politics/biden-tiktok-ban-trump.

Executive Order 13873, President

html; https://www.wsj.com/articles/

Biden relied on the declared national

biden-revokes-trump-actions-

emergency as the basis for the June

targeting-tiktok-wechat-11623247225;

9, 2021, order—but took a different

https://www.washingtonpost.com/

approach. The June 9 order revokes

technology/2021/06/09/tiktok-ban-

the orders banning TikTok, WeChat,

revoked-biden/

and other apps and instead requires the government to look at "potential

expression of opinion," the school

The 2019 Trump order, Executive

would have to show that "its action

Order 13873, declared a national

was caused by something more than a

emergency based on an "unusual

mere desire to avoid the discomfort and

and extraordinary" national security

unpleasantness that always accompany

threat posed by the possible use of

an unpopular viewpoint."

management by persons that

technologies created or provided by

support a foreign adversary's

companies under the control of foreign

military, intelligence, or

Davis Wright Tremaine LLP filed an amicus brief in the Mahanoy case on behalf of Mary Beth and Joe Tinker, key litigants in the U.S. Supreme Court's landmark 1969 student-speech ruling Tinker v. Des Moines Independent Community School District.

Robert Corn-Revere is a partner and John D. Seiver is of counsel in the Washington, D.C. office of Davis Wright Tremaine. Caesar Kalinowski IV is an associate in the Seattle office of Davis Wright Tremaine.

indicators of risk" before banning transactions, including: •

adversaries to compromise critical

proliferation activities" are "subject

U.S. ICT. The order authorized the

to coercion or cooption by a

Secretary of Commerce to ban certain

foreign adversary" or are "involved

transactions with these companies.

Invoking this emergency, President

"[O]wnership, control, or

in malicious cyber activities"; •

Use of the software to conduct

Trump issued three orders prohibiting

espionage, including by allowing

transactions with (1) TikTok and its

a foreign adversary to access

parent company, (2) WeChat and its

sensitive government, business, or

parent company, and (3) other Chinese

personal data;

apps. None of these orders took effect: In litigation where DWT represented

•

third-party auditing of connected

groups of TikTok and WeChat content creators, courts blocked the TikTok and WeChat bans. (DWT argued

software applications"; •

and the International Emergency

The "scope and sensitivity" of the data the software collects;

successfully that these bans likely violated users’ First Amendment rights

"[A] lack of thorough and reliable

•

The number and sensitivity of the application's users; and

08

•

medialawmonitor

"[T]he extent to which identified

abuses." The prohibitions took effect

accompanying fact sheet states

risks have been or can be

August 2, 2021, and current investors must

that the order "expand[s] the U.S.

addressed by independently

divest their holdings by June 3, 2022.

Government's ability to address

verifiable measures."

The Secretary of Commerce must

Order 13959 issued by President Trump

continually evaluate these risks, and

in November 2020, which found that

where they are "undue" or "unacceptable,"

China was developing its military,

may prohibit related transactions.

intelligence, and security capabilities

" The June 9 order also targets human rights abuses" The June 9 order also targets human rights abuses, stating that "[i]f persons who own, control, or manage connected software applications engage in serious human rights abuse or otherwise facilitate such abuse, the United States may impose consequences on those persons in action separate from this order."

Finally, the order directs the Secretary of Commerce to provide recommendations to protect sensitive data from the unrestricted sale, transfer, or access by persons or companies of

address risks of connected software developed in such countries.

Investments in Chinese Companies in Military and Surveillance Sectors Under June 3, 2021, Order On June 3, 2021, the Biden Administration issued Executive Order No. 14032 that prohibits U.S. investments in a specific list of Chinese

economy, including by compelling civilian companies to support and modernize its military apparatuses.

Executive Order 13959 prohibited investment in certain listed "Communist Chinese military companies" (CCMCs) or others designated by the Secretaries of Defense or Treasury.

" A fact sheet accompanying the [June 3] order states that the listed companies "undermine the security or democratic values of the United States and [its] allies."

both inside and outside China—to the surveillance of religious or ethnic minorities or otherwise facilitate repression and serious human rights abuses."

•

The Secretaries of Defense and Treasury no longer have the power to unilaterally designate companies as CCMCs. Instead, the responsibility lies principally with the Secretary of Treasury, who must consult with the Secretary of State and may, if they deem appropriate, consult with the Secretary of Defense.

The Annex to the June 3 order lists 59 companies—many overlapping—to supersede and replace the list of 44 CCMCs maintained under Executive Order 13959. The new list will be called the Non-SDN Chinese Military-Industrial Complex Companies list (CMIC list) instead of the CCMC list.

Conclusion The June 3 order largely preserves the core of Executive Order 13959, prohibiting investment in specified companies that "operate or have operated in the defense and related materiel sector or the surveillance technology sector of the economy of the PRC." There are, however, three

Although it is early in the Biden Administration, the June 2021 executive orders suggest three guiding principles shaping U.S. policy on technology companies operating in China. First, the Biden administration believes threats from China are real, significant, and

notable differences:

must be addressed.

•

Second, the Biden Administration

The June 3 order includes companies in the "related materiel"

companies. A fact sheet accompanying

sector, possibly an effort to address

the order states that the listed

claims that a company's relationship

companies "undermine the security or

with the Chinese military is too

democratic values of the United States

attenuated to justify inclusion on

and [its] allies."

the list—claims that two companies have successfully made.

The order targets companies involved in "military, intelligence, and security

technology firms that contribute—

through its large, "ostensibly private"

foreign adversaries and on additional executive and legislative actions to

the threat of Chinese surveillance

The June 3 order builds on Executive

•

The June 3 order prohibits

will take a more nuanced approach to specific threats. ByteDance and Tencent—owners of TikTok and WeChat—sought to address the Trump Administration's concerns through a series of targeted measures, but the administration rejected those efforts.

The June 9 order suggests that such measures may be sufficient in the future.

research" or that develop or provide

transactions with companies

surveillance technologies "to facilitate

operating in the "surveillance

Third, the Biden Administration will

repression or serious human rights

technology sector." The

focus not only on security risks from

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09

Chinese companies, but also those

continued from page 05...

words, websites could face liability

companies' involvement in human

Senators Propose Substantial Revisions to Section 230's Protections for Online Providers

for defamatory or misleading material

rights abuses.

Similar trends are emerging from the

trade and foreign investments. The Biden Administration's review of foreign investments and transactions under the Committee on Foreign Investment in the U.S., for example, remains equally rigorous after substantial expansion of the Committee's jurisdiction under the Trump Administration.

online advertising ecosystem, under The immunity is widely credited with enabling the proliferation of online content and has been expansively interpreted by courts to bar the vast majority of claims based on user content. But in recent years, elected officials, courts, and others have raised concerns about how Section 230 operates in practice, with some focused

U.S. companies must be increasingly

on unlawful content that Section 230

cognizant of both investments in and

permits providers to disseminate, such

investments from foreign entities

as harassment and hate speech.

under this administration, especially in the technology, infrastructure, and identifiable data sectors.

Michael T. Borgia and David M. Gossett are

provider pays. This amendment would fundamentally change the current

Biden Administration's enforcement of existing regulation of international

in ads or in content for which the

The announced SAFE TECH Act attempts to address those concerns.

Proposed Revisions to Section 230

partners in the Washington, D.C. office of

The Act would significantly change

Davis Wright Tremaine. Ambika Kumar is a

Section 230 in three ways, by: (1)

partner in Seattle and Thomas R. Burke is a

reducing the type of content protected;

partner in San Francisco. Kelly Valencia was

(2) making it more difficult and costly to

an associate at Davis Wright Tremaine and is

prevail on Section 230 in court; and (3)

now Senior Counsel at Gilead Sciences, Inc.

allowing requests to require providers to remove allegedly unlawful material.

Limiting the Scope of Protected Material Although Section 230 has always contained exceptions—primarily for federal intellectual property, criminal, and federal privacy laws— those exceptions have not materially altered the way providers operate. For example, other statutes and commonlaw regimes protect providers from liability for infringing third-party

which advertisers, not websites, bear the responsibility for their own content.

Under the Act, websites would likely require liability insurance as a condition of hosting paid content.

Second, the Act would exempt a raft of other laws, including those relating to: •

Civil rights;

•

Antitrust;

•

Stalking, harassment, and intimidation;

•

International human rights; and

•

Wrongful death.

Thus, for wide swaths of content, Section 230 immunity would no longer be available. And, likely, websites would again face a choice between not vetting any content, or risk becoming responsible for all content.

Consequently, unlawful content could proliferate, and lawful content could be suppressed—undoing Section 230's progress in many respects and undermining its goals.

" [U]nlawful content could proliferate, and lawful content could be suppressed—undoing Section 230's progress in many respects and undermining its goals."

content, and criminal and privacy laws typically require providers to manage their own behavior more than they require vetting of third-party content.

The SAFE TECH Act would change this.

The Ease of Applying Section 230 Today courts frequently dismiss claims targeting third-party content at an early stage of the case, without

First, the Act would exempt from

requiring discovery. But the SAFE

any protection content for which

TECH Act would expressly forbid

the provider pays or is paid. In other

that approach and, instead, mandate

10

medialawmonitor

a court treat Section 230 immunity as an affirmative defense—to be pled and proven by the provider—rather than a reason to dismiss a lawsuit at the outset.

This would increase the cost to providers of defending claims and enable plaintiffs to file questionable lawsuits, hoping to extract a settlement. The burdens of such an approach could well fall disproportionately on small providers who may not have the resources to fight prolonged court battles.

Removal of Problematic Material Finally, the SAFE TECH Act would permit claims for injunctions against "material that is likely to cause irreparable harm." In other words, anytime someone believes that a posting causes them "irreparable harm," they can seek injunctive relief if a provider refuses to remove it.

Again, this would have serious consequences— to evade Section 230 immunity, an individual need only request injunctive relief, even if the underlying content is lawful.

First Amendment Limitations?

No matter what lawmakers' intent might be, the SAFE TECH Act would likely cause some providers to severely limit the amount of speech they host, including speech that is lawful; to take down third-party speech upon complaint; or to avoid publishing third-party content altogether.

In any event, the First Amendment might provide protection where Section 230 does not—as the First Amendment generally requires some level of knowledge to impose liability on the distributor of third-party speech.

This article was originally featured as a technology, privacy, and security advisory on DWT.com on February 10, 2021. Our editors have chosen to feature this article here for its coinciding subject matter.

Christopher W. Savage is a partner in the Washington, D.C. office of Davis Wright Tremaine.

Ambika Kumar is a partner in the Seattle office of Davis Wright Tremaine. James Rosenfeld is a partner in the New York office of Davis Wright Tremaine.

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Washington State Passes New Anti-SLAPP Statute

By Ambika Kumar, Bruce E. H. Johnson, and Eric M. Stahl

E

ffective July 25, 2021, the state

the exercise of free speech. Like its

of Washington has a new anti-

•

"[E]xercise of the right of freedom

predecessor, Wash. Rev. Code § 4.24.525,

of speech or of the press, the right

SLAPP statute—replacing the version

the new law allows a defendant to file a

to assemble or petition, or the

that the Washington Supreme Court

special motion for expedited relief if the

right of association, guaranteed by

declared invalid in 2015. The statute

claim falls within three categories:

the United States Constitution or

restores important defenses for news organizations, political groups, and

•

other governmental proceeding";

defamation and similar claims.

Act, a modified version of which Washington adopted, is designed to deter meritless litigation that targets

matter of public concern."

executive, judicial, administrative, or

other speakers and publishers against

The Uniform Public Expression Protection

Washington State Constitution, on a

"[C]ommunications in a legislative,

•

"[C]ommunication on an issue under consideration or review in a legislative, executive,

A court must dismiss the lawsuit if it finds the claims subject to the antiSLAPP statute and that either: •

The responding party fails to establish

judicial, administrative, or other

a prima facie case as to each essential

governmental proceeding"; and

element of the cause of action;

12

•

•

medialawmonitor

The moving party establishes that

The statute contains numerous

motions for judgment on the pleadings,

the responding party failed to state

exemptions, including real property

and summary judgment motions—largely

a cause of action upon which relief

claims, claims for wrongful death or

mirror the federal rules of civil procedure.

can be granted; or

bodily injury, insurance claims, and

The moving party establishes that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.

" The Uniform Public Expression Protection Act, a modified version of which Washington adopted, is designed to deter meritless litigation that targets the exercise of free speech."

claims under state labor laws. The statute also exempts claims under the state Consumer Protection Act, those for common law fraud, and those brought against a person selling or leasing goods or services for a communication related to the sale or lease of those goods or services.

However, these last three exemptions are inapplicable for claims arising from the gathering, receiving, posting, or processing of information for communication to the public or for the creation, dissemination, exhibition, or advertisement or promotion of an artistic work; or claims related to the communication, gathering, receiving, posting, or processing of consumer

In making its decision, a court must "consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment."

While a motion for expedited relief is pending, all other proceedings, including discovery, are stayed. A court may allow "limited" discovery if a party shows that "specific information is necessary to establish whether a party has satisfied or failed to satisfy" its burden on the merits "and the information is not reasonably available

opinions, such as ratings and reviews.

" The statute contains numerous exemptions, including real property claims, claims for wrongful death or bodily injury, insurance claims, and claims under state labor laws."

The uniform law replaces Wash. Rev. Code § 4.24.525, which the state

unless discovery is allowed."

Supreme Court held unconstitutional

If the court grants the motion, the

P.3d 862 (2015). In Davis, the court

moving party is entitled to its attorneys' fees and costs—so long as the moving party provided the responding party 14 days' notice before filing the motion. If a court denies the motion, the responding

in Davis v. Cox, 183 Wash. 2d 269, 351 found the burden of proof on the responding party—to prove a probability of prevailing on the merits by clear and convincing evidence—invalid.

party may recover fees and costs if

The uniform law fixes this defect by

the court finds the motion was "not

incorporating the standards needed

substantially justified or filed solely with

to defeat a motion to dismiss under

intent to delay the proceeding." In the

Washington Civil Rule 12(b)(6) and 12(c),

event of a denial, the moving party also

as well as Washington Civil Rule 56.

has an automatic right of appeal.

These rules—for motions to dismiss,

Ambika Kumar, Bruce E. H. Johnson and Eric M. Stahl are partners in the Seattle office of Davis Wright Tremaine.

FALL 2021

13

SCOTUS Limits Reach of Computer Fraud and Abuse Act: Nefarious Reasons Are Not Enough for Criminal Liability

By David M. Gossett, Katherine M. Bolger, John M. Browning, and Michael T. Borgia

I

n June 2021, the U.S. Supreme Court

which the user was permitted access in

access a computer with authorization

resolved an important question about

the first place. The decision will have far-

and to use such access to obtain or alter

the meaning of provisions prohibiting

reaching consequences for anyone who

information in the computer that the

"unauthorized access" or "exceeding

uses computers to access and retrieve

accesser is not entitled so to obtain or

authorized access" to computer systems

information digitally.

alter." 18 U.S.C. § 1030(e)(6).

Fraud and Abuse Act of 1986 (CFAA).

The CFAA subjects to criminal and

Everyone agrees that these provisions

The Court, in a 6-3 decision in Van Buren

civil liability anyone who "intentionally

of the CFAA prohibit traditional hacking

v. United States, 141 S. Ct. 1648 (2021),

accesses a computer without

done for a malicious purpose—for

sided with lower courts that found the

authorization or exceeds authorized

example, breaking into a computer

CFAA does not prohibit accessing data

access." 18 U.S.C. § 1030(a)(2). The term

system by using an illegally obtained

for a purpose other than the purpose for

"exceeds authorized access" means "to

password to steal data or encrypt files.

and databases under the Computer

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They also cover "insider threats"—

offering that he had information to

in the CFAA "prohibit[] only unlawful

employees who, for example, have

share. Prosecutors charged Van Buren

information 'access,' not downstream

access to a portion of a computer system

with several crimes, including violations

information 'misus[e].'"

but who access portions that they are

of the CFAA. Van Buren argued that he

not authorized to access (e.g., restricted

was authorized to access that database,

systems containing business secrets).

and the fact he accessed it for an

" The decision will have far-reaching consequences for anyone who uses computers to access and retrieve information digitally."

unauthorized reason did not mean he had "exceed[ed] authorized access."

Finally, the Court noted that "the Government's interpretation of the statute would attach criminal penalties to a breathtaking amount of commonplace computer activity." "If the 'exceeds

The U.S. Supreme Court agreed. To the

authorized access' clause criminalizes

majority, the case was simple. The Court

every violation of a computer-use

relied primarily on the text of the statute,

policy," the Court explained, "millions

particularly the definition of "exceeds

of otherwise law-abiding citizens

authorized access," to conclude that

are criminals." Any employee who is

Van Buren was "entitled" to obtain the

authorized to use an employer-supplied

material he obtained and in the manner

computer only for business purposes

For decades, courts have been divided

that he obtained it. That he accessed the

would, for example, violate the CFAA by

whether the CFAA also prohibits

material for an improper purpose did not

sending a personal email.

accessing computer systems or files

change the textual analysis.

with permission but for a forbidden reason. Does an employee "exceed[] authorized access" by, for example, downloading materials the employee is allowed to access for work, but with the intent of quitting and taking those materials to another employer?

" Does an employee 'exceed[] authorized access' by, for example, downloading materials the employee is allowed to access for work, but with the intent of quitting and taking those materials to another employer?"

The facts of Van Buren provide a stark example. A police officer, Nathan Van Buren, was offered $5,000 to check whether someone was an undercover police officer by using a license plate number. Van Buren searched for the number in a license plate database to which he had access, but only for legitimate law enforcement purposes.

Van Buren is critically important to a

The Court also concluded that this

vast array of companies. The decision

reading was more consistent with

will limit the ability of some companies

the overall structure of the CFAA, as

to use the CFAA to enforce terms of

it harmonized the analysis under the

service that prohibit particular uses of

"without authorization" and "exceeds

their data as well as the ability to punish

authorized access" prongs of the

employee misconduct.

statute. Under the majority's reading, both prongs pose a straightforward "gates-up-or-down" inquiry—one either has permission to access a system or part of a system or one does not.

" In fact, the government conceded that the access provisions in the CFAA "prohibit[] only unlawful information 'access,' not downstream information 'misus[e].'"

The Court also concluded that the government's reading of the statute would mangle the CFAA's civil liability provisions, reasoning that the statute's civil remedies for "loss" and "damage" are best suited to address the consequences of traditional computer hacking (loss of data, inability to

In fact, the request was part of a sting

access systems, etc.)—not claims of

operation, and Van Buren was arrested

data "misuse." In fact, the government

after carrying out the search and

conceded that the access provisions

And the decision is a welcome result for computational journalism. As The Markup, a nonprofit news organization that conducts data-driven investigations into digital technology, argued in its amicus brief in the litigation, a different, broader reading would have infringed on established First Amendment protections for journalists. DWT attorneys Kate Bolger, Jack Browning, and David Gossett represented The Markup in the litigation.

David M. Gossett and Michael T. Borgia are partners in the Washington, D.C., office of Davis Wright Tremaine. Katherine M. Bolger is a partner and John M. Browning an associate in the New York office of Davis Wright Tremaine.

FALL 2021

15

Mandatory COVID-19 Vaccination Policies: Issues Every Entertainment Industry Employer Should Consider

By Arielle Spinner and Julie Capell

I

n an effort to keep cast, crew, and others safe, production companies and

distributors are considering whether to require individuals to be fully vaccinated against COVID-19. Vaccination policies play a crucial role in productions’ evolving safety protocols, but there are numerous factors to consider when determining whether to require or encourage vaccination.

1.

Is your business required by federal, state, or local law to mandate employee vaccination?

President Biden recently directed federal OSHA to adopt an Emergency Temporary Standard (ETS), expected to be published in the near future, requiring private businesses with 100 or more employees to mandate COVID-19 vaccinations or adopt a mandatory testing policy. Many state and local governments have

implemented—or are planning to implement—similar vaccine mandates. Employers with questions about applicable vaccine mandates should contact legal counsel.

2. Is your production permitted by the guilds’ Return-to-Work Agreement or required by a network/ distributor to mandate vaccination?

The guilds’ Return-to-Work Agreement includes specific requirements surrounding when,

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how, and for which positions

4. Is a mandatory vaccination policy

businesses in some industries are

production companies can mandate

prohibited in any jurisdiction in

legally obligated to ensure that only

vaccination for cast and crew. For

which your business operates or

fully vaccinated individuals enter

example, the Agreement permits

employs people?

the premises. If no legal obligation

production companies to mandate vaccination for individuals who work in “Zone A.” Employers with unionized workforces need to consider potential bargaining obligations when implementing mandatory vaccine policies

Some state and local governments have implemented—or are planning to implement—laws that prohibit businesses from requiring their workers to be vaccinated against COVID-19. Employers should contact legal counsel to understand the applicable laws for any jurisdiction

Additionally, some networks/

where they have employees or

distributors are now requiring

are operating. This includes every

production companies to mandate

location in which a production is

vaccination for either all cast and

filming. Businesses covered by

crew or cast and crew in certain

both the federal COVID-19 vaccine

“zones” on set, even for non-guild

mandate and a state or local law that

productions. Production companies

prohibits such a mandate should

should consult with the applicable

consult an attorney for specific

networks/distributors to confirm

guidance due to the complex issue

compliance with internal and

of which law controls.

contractual requirements.

3. Is your business producing any

5. May an employer issue a vaccine mandate for those in certain positions

live events that are subjected to

rather than its entire workforce?

federal, state, or local vaccine

Employers who are not required

requirements for performers, attendees, and others?

Some jurisdictions have implemented COVID-19 safety regulations for large events and “mega events,” both indoor and outdoor. Many of these regulations include vaccination requirements for performers, audience members, and others. For example, in Los Angeles County, all attendees at both indoor and outdoor mega events must show proof of full

by law to mandate COVID-19 vaccinations for all employees may elect to require vaccines for certain groups of employees. For example, it may be more clearly in the interest of public health to require vaccination for Zone A cast and crew but not necessary for individuals who work entirely remotely or who work alone in their own offices with no interaction with others (e.g., post-production).

6. May employers require

or prohibition applies, employers may elect to require that contractors and others who enter its premises are fully vaccinated. Employers should consider whether such a vaccination policy would serve its goals, be administratively feasible, and be in the interest of public health. If an employer decides to mandate vaccination to individuals other than its own employees, the employer should ensure that it has the administrative resources and processes in place to execute the policy in an efficient, practicable, and lawful manner.

7. Must employers ask individuals to provide proof of vaccination when vaccination is mandated by law?

If so, what type of proof is both sufficient and permissible under applicable laws?

Laws that mandate vaccines often specify the level of proof required.

Depending on the applicable law, businesses may permit individuals to “self-attest” that they are fully vaccinated, or businesses may need to ask for documentary proof of vaccination. Some states, such as California, specify what types of documentary proof of vaccination are necessary to comply with state mandatory vaccination law.

In most jurisdictions, employers who voluntarily implement vaccine mandates may elect what type

vaccination against COVID-19 or a

independent contractors,

pre-entry (diagnostic) test result

subcontractors, and any others on-

prior to entry. Additionally, at indoor

site to be fully vaccinated?

policies. For guild productions,

events in Los Angeles, performers

Employers should consult with legal

Return-to-Work Agreement to

may only remove their face coverings to perform if they are fully vaccinated or tested for COVID-19 at least twice per week. Companies

counsel to determine whether any applicable federal, state, or local laws either require or prohibit them

of proof is sufficient under their companies should consult the confirm compliance.

8. Must the employer issue medical

from applying a vaccine mandate

privacy authorization forms to

with questions about applicable

to anyone other than their own

individuals before collecting any

requirements for live events should

employees. In some localities, such

information about individuals’

contact legal counsel.

as San Francisco and Los Angeles,

vaccination status?

FALL 2021

17

Some states, such as California

processes with individual

and Texas, have laws that require

employees who request a religious

by law or the employer’s policy to be

businesses to issue specific

or medical accommodation?

vaccinated refuses to get vaccinated

authorization forms before collecting certain categories of information from individuals. In those states, businesses should ensure that covered individuals review and sign these forms before they ask individuals to provide medical information such as COVID-19 vaccination status. In other locations, employers may ask to see vaccine documentation without specific privacy disclosures.

If the employer obtains a copy of vaccine records, it should maintain those records as confidential medical information.

9. If an employer is simply encouraging but not requiring vaccination, is it lawful for the employer to provide incentives to encourage employees to get vaccinated?

Some businesses provide incentives, such as one-time bonuses or ongoing discounts on their health insurance payments, to employees who get fully vaccinated against COVID-19. These are generally legal. However, businesses are encouraged to consult with legal counsel to verify that proposed incentives are acceptable. Some laws may limit the permissible types of incentives (e.g., HIPAA Nondiscrimination and the Wellness Program exception; Americans with Disabilities Act; Affordable Care Act; and Internal Revenue Code section 105(h)’s nondiscrimination provision). Businesses should contact an experienced employment law attorney for specific guidance.

10. Does a business that requires

Businesses that require COVID-19 vaccination for employees

12. What if an employee who is required

and does not qualify for a religious or medical accommodation?

must be prepared to consider

If an employee does not qualify

accommodation requests from

for accommodation for religious

employees on the grounds of a

or disability reasons, the employer

sincerely-held religious belief or

is not legally obligated to

a qualifying medical condition or

accommodate the employee and

disability. Depending on the size of

could terminate the employee.

the employee population and the

Even so, some employers choose

capabilities of the Human Resources

to accommodate such employees

team, this may be a challenging

anyway with remote work, transfer

and time-consuming undertaking.

to an alternative position, or a leave

Employers should prepare in advance

of absence. Before implementing

for how these exemption requests

a mandatory vaccination policy,

will be processed and considered.

employers should consider how

11. If a business requires vaccination and an employee requests accommodation for religious or disability reasons, what is the employer’s obligation?

When an employee cannot be vaccinated for religious or disability reasons, the employer must engage in the interactive process with the employee and determine how—and if—the employee can be reasonably accommodated. The standards for accommodation for religious and disability accommodations often

they will handle such situations when they arise to ensure consistent application of policies and protocols.

Employers should carefully consider these and other questions when deciding how to address the issue of COVID-19 vaccination in their workplaces. The issues identified in this list are not exhaustive. Because federal, state, and local laws are rapidly changing, employers are wise to work closely with legal counsel and remain prepared to update employment policies as needed.

differ, and employers are obligated to consider each accommodation situation on a case-by-case basis.

For example, depending on the circumstances, such as the job duties and cost of the available accommodations, it is possible that there are no reasonable accommodations for in-person work.

In such circumstances, the employer must assess and discuss available options with the employee, such as fully remote work or a leave of absence. Overall, it is important for

vaccination, either voluntarily

employers to apply accommodation

or as required by law, have the

standards consistently. Businesses

administrative infrastructure and

should contact an experienced

resources to engage in interactive

employment law attorney for

and reasonable accommodation

specific guidance.

Arielle Spinner is an associate and Jonathan Segal and Julie Capell are partners in the Los Angeles office of Davis Wright Tremaine.

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