The photo editors of social networking

There is an interesting story in today’s New York Times about a growing profession of screeners whose job it is to look at social networking images and flag them for inappropriate content- pornography, violence and other disturbing images. Some of the work is outsourced, but some is done in-house, depending on the company needing the review.

Like journalists, many of these individuals suffer psychological consequences from constantly seeing disturbing images. Oddly the article doesn’t mention anything about how they handle referring illegal activity to law enforcement. But it is fascinating to realize that in a world where content is provided by the masses, there is still a level of gate-keeping.

“Don’t shoot me! (while I’m in handcuffs)”

A couple of weeks ago, a defendent in Long Island, NY, actually had the nerve to ask a federal judge to bar the media from publishing photographs of him in handcuffs. The defendant, former legislatorRoger Corbin, was arrested on federal charges of tax evasion.

Among the things that Corbin asked for was an end to the “perp walk,” specifically:

(A) permanently enjoining, restraining, and stopping Newsday, News 12 and the United States Government from issuing press releases, mug shots or “perp walk” photos, videos or images of the defendant in handcuffs; and

(B) permanently enjoining the United States Government from conducting “perp walks” or issuing other information of the defendant aside from pedigree information and except as directed by the Court;

Needless to say, the motion to prevent perp walks, for either Corbin, or other defendants, was denied, as was the motion to stop publication of the images of Corbin in handcuffs. But as is the case with most rulings, the judge cannot just say “no.” He has to explain it.  The case goes through all of the motions of why, and for that reason it is interesting reading to anyone who wants to know the law behind perp walks or behind judicial restraint and the push-pull of fair trial vs. free press.

I thought it was interesting that the judge found the perp walk issue moot because it had already happened. Federal courts can only rule on “cases in controversy,” in other words, if there was about to be a perp walk, there would be a controversy, but since the time had passed, there was no “justiciable” issue. I was surprised by this ruling, even though the judge had good precedent. There are exceptions to this rule when the issue is something that will be repeated, and it ordinarily begins and ends before a case can reasonably be brought. This was the reasoning behind some desegregation cases, when the child had already graduated.

Also interesting to me, was that in Corbin’s efforts to stop the police from releasing information and photos to the media, the judge ruled that the media had rights because as the recipients to the information, their First Amendment rights were invoked. In other words, when it comes to restricting information, both the person communicating the information AND the recipient have first amendment rights. To quote a Supreme Court case, “W]here  [*29] a willing speaker exists, … the protection afforded is to the communication, to its source and its recipients both.” (case can be found at 425 U.S. 748). The fact that the recipient has as much right to recieve the communication as the speaker has to give it is not something that I was aware of. It is definitely useful.

The judge’s ruling on the motions can be found at United States v. Corbin, 2009 U.S. Dist. LEXIS 46241 (E.D.N.Y. June 1, 2009).

SLAPP meets Photography

So, now we know what a SLAPP suit is, and what anti-SLAPP is. You may wonder… What does it have to do with photography?

There are a couple of cases where SLAPP was used as intimidation against photographers:

California Coastal Records Project: In a classic Free Speech vs. Right to Privacy case, when environmentalist and photographer, Kenneth Adelman, posted aerial photographs of the California Coastline, he ended up with a photo of Babara Streisand’s house in the collection, available on the internet. She filed an invasion of privacy suit. Adelman filed an anti-SLAPP motion. It was granted and she was forced to pay over $150,000 in his legal fees.

Ironically, before the lawsuit, the image had only been downloaded a few times. Now the very photo that she was trying to keep away from public eye has been seen in connection with the dozens and dozens of articles posted on the case, and the blossoming environmental group attained global recognition, and more positive publicity than legions of PR agencies could ever get them. This is now called the “Streisand Effect.”

Copyright SLAPP: Photographer Chris Gregerson filed a copyright infringement suit against a local business who violated his copyright and the infringers attempted to bury him in countersuits with charges such as libel, defamation and misappropriation. His SLAPP motion to strike was denied. He eventually won his case, but after 2 years of legal wrangling. He documents the saga on his website here.

Here is a case where SLAPP was alleged, but it wasn’t really so and the motion to strike was denied.

Sports Illustrated/ Invasion of Privacy: In 1999, Sports Illustrated ran a story about child molesters in little league baseball. They included in the story a photo of a team whose manager had plead guilty to molesting five children that he had coached. Some of the children in the photo sued SI parent corp, Time Warner. Time Warner filed an anti-SLAPP motion to strike. It was denied and upheld on appeal.

One of the elements of a SLAPP suit is that it is unlikely to succeed. The reason this anti-SLAPP motion to strike was denied was these plaintiffs had a case that was reasonably likely to succeed if all the allegations were true. They had demonstrated a prima facie case of invasion of privacy. Anti-SLAPP is designed to curb meritless lawsuits, not to prohibit bona fide claims.

Text messages, some emails, are private (at least on the West Coast)

The Ninth Circuit has ruled that even if your cell phone is owned and the plan is paid for by your employer, that employer cannot read your text messages. The court ruled that an Ontario police department violated an officers right to privacy when they obtained his text messages from the cell phone company to see if he had been writing personal text messages. They also ruled that if a company outsources its email service (no company server), that email is private as well.

This, despite the fact that the department had a policy clearly stating that employees should have no expectation of privacy and that the text messages and emails might be monitored. The kicker- despite that policy, they told the officer that if he paid the overage fess, his texts would not be audited. This created a reasonable expectation of privacy. If they had told him that in subsequent months they were going to audit the content of the messages, that might have been all right. The key- he had a reasonable expectation of privacy, and the search was unreasonable.

Clearly he did expect privacy- he had been writing sexually explicit messages to his wife.

Remember, that this is the 9th Circuit. This may lead to a different result in the 5th Circuit. But the Ninth Circuit, having jurisdiction over silicon valley, has a lot of experience with adjudicating tech cases

Source, Quon v. Arch Wireless Operating Co.