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.
02
medialawmonitor
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. Our lawyers have worked as professional journalists, engineers, and lawyers in these industries, as well as for the government agencies that regulate them. With these capabilities, we offer a deep understanding of our clients’ businesses.
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
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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
FALL 2021
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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