A warrantless cellphone tracking case heard by the Massachusetts Supreme Judicial Court (SJC) last week could have repercussions for future legislation on privacy in the state, said privacy lawyers and stakeholders in interviews. The amicus briefs and oral argument raised questions on how the third-party doctrine has allowed government entities to get access to more personal information and how technologies have changed over the years. If the SJC ruled to restrict warrantless cellphone tracking, it would be the second state to interpret the Fourth Amendment to enhance privacy protections, said Jessie Rossman, ACLU Massachusetts staff attorney.
Major Questions Doctrine
The U.S. Supreme Court upheld FCC authority to impose in 2009 a shot clock on cell tower zoning decisions, rejecting the arguments of cities, led by Arlington, Texas. When the case was argued in January (CD Jan 17 p1), the main question was whether the high court would add to already complicated case law on the Chevron doctrine, in a case examining whether federal agencies should receive deference in interpreting their own jurisdiction. In January 2012, the 5th U.S. Circuit Court of Appeals upheld the order, which set up a showdown before the Supreme Court. The court’s conservatives split on the decision Monday. Justice Antonin Scalia wrote the majority opinion, while Chief Justice John Roberts dissented, joined by justices Clarence Thomas and Samuel Alito.
Cities got their day in court Wednesday in their challenge to a 2009 FCC wireless zoning shot clock order previously upheld by the 5th U.S. Circuit Court of Appeals, which was heard by the U.S. Supreme Court. The major question that came up repeatedly as justices took up Arlington, Texas v. FCC was whether the high court should further add to already complicated case law on when an agency has jurisdiction to issue rules and whether agencies should receive deference when interpreting the scope of their own regulatory authority.
Opening briefs were due Monday in the Supreme Court case Arlington, Texas, et al. v. FCC, which will take a hard look at the Chevron doctrine and federal agencies’ ability to determine their jurisdiction. The court took up the question Oct. 5, raising questions about how the FCC exerts its authority (CD Oct 12 p1). Petitioners include the city of Arlington and San Antonio, Texas, Los Angeles, San Diego and the Texas Coalition for Utilities Issues. The petitioners have attracted significant support among state advocates. The National Association of Regulatory Utility Commissioners adopted a resolution Nov. 13 in support of the petitioners (CD Nov 14 p5) and NARUC is now one among many state advocates speaking up.
BALTIMORE -- State regulators are confronting an increasingly tortured relationship with the FCC, creating a task force to address it Monday at the NARUC meeting. It consists of seven commissioners and is already official and active. Meanwhile, two NARUC resolutions directly address the fractured FCC relationship, as was expected (CD Nov 2 p12), and NARUC adopted both resolutions as policy Tuesday after they advanced through the telecom subcommittee and committee. One urges FCC referral to the Federal-State Joint Board on Universal Service as well as to the Federal-State Joint Board on Jurisdictional Separations on major decisions, and another addresses a pending Supreme Court case on the Chevron doctrine, looking at the risk of federal overreach of authority.
The U.S. Supreme Court’s decision to hear a case challenging a 2009 FCC wireless zoning shot clock order may have much bigger implications for the commission and other regulatory agencies, lawyers and analysts said this week. The court granted cert Friday (CD Oct 10 p15) in Arlington, Texas, v. FCC, in a case that could mean high court review of the broader Chevron doctrine. The doctrine requires federal courts to defer to an agency’s interpretation of a statute, as long as that interpretation is deemed “reasonable.” The doctrine dates to a 1984 case, Chevron U.S.A. v. Natural Resources Defense Council.
The Supreme Court’s Jones decision has left the law in disarray concerning warrantless government access to information from cell-site tracking, email, cloud computing and Web surfing, legal experts said Wednesday. “The law is really up in the air and uncertain at this point,” said Hanni Fakhoury, an Electronic Frontier Foundation lawyer. Susan Axelrod, senior appellate counsel at the Manhattan District Attorney’s office, said that “for a prosecutor, it’s very frustrating” trying to deal with the questions opened by the case.
Google’s YouTube could still find itself guilty of copyright infringement, under a ruling Thursday by the 2nd U.S. Circuit Court of Appeals, which sent back to a trial court Viacom’s case against the video-sharing website. The U.S. District Court in New York had absolved YouTube of liability, granting summary judgment under the Digital Millennium Copyright Act (DMCA) safe harbors (CD June 24/10 p6). The 2nd Circuit found fault with U.S. District Judge Louis Stanton’s requirement that YouTube have “item-specific” knowledge of infringement to be disqualified from the safe harbors, and said a “reasonable jury” could find that YouTube had “actual knowledge or awareness of specific infringement.”
The U.S. Supreme Court ruled unanimously Monday that police must obtain a search warrant before using GPS technology to track criminal suspects. The ruling was the first by the court that tackled the constitutionality of GPS tracking. Privacy advocates were quick to hail the court’s decision in U.S. v Jones (http://xrl.us/bmpkkt) as a major win, though they acknowledged many difficult electronic privacy questions remain unsettled.
SAN FRANCISCO -- The legal system must recognize information law as a cohesive field crossing several traditional doctrines and the world’s many jurisdictions, to lay a good foundation for a long era of new rules supporting innovation, said Kent Walker, Google’s general counsel. “If you get that foundation wrong, the house is going to go off in a funky direction,” he said at the Corporate Counsel West Coast Conference. And in-house lawyers should stop being largely naysayers and become agents of change with regulators and those at other companies in addition to within their own, he said.