Sunday, April 07, 2013
What Does a First-To-File System Mean and What Will This Change to the Patent Process Mean for Inventors and Companies?
The America Invents Act (AIA) is the latest reform in U.S. patent law signed into effect on September 16, 2011. With a set of rolling changes, on of the main modifications takes place on March 16, 2013, which will transition the patent system from a “first-to-invent” system to a “first-to-file” system. This will bring serious change for inventors and companies in their strategies for filing patents.
The United States patent system has operated under a first-to-invent system for the last 200 years. Under this system a patent is granted to the inventor who first effectively invented the patent, regardless if they were the first to file for a patent application on the invention. For example if Inventor A invents a patentable invention but does not yet file an application with the United States Patent and Trademark Office (USPTO), but then Inventor B invents the same patent and does file an application with the USPTO claiming the invention, A would be entitled to the patent if A later filed an application. Even thought A filed after B, A would be granted the patent if he showed documentation of having an earlier invention date and showing he actually or constructively worked to “reduce the invention to practice.” This system is time consuming and difficult as attempting to deduce a date on which a person actually invented something can prove quite difficult.
March 16, 2013 brings about a first-to-file system, which de-emphasizes the actual invention date while focusing on who filed first. This change will further synchronize U.S. patent law with most of the rest of the world who also implement a first-to-file patent law system. The main question this change brings about is not who first conceived an invention (as in under a first-to-invent system), but rather who was the first to file a patent application with the USPTO. Some critics of the system change argue that this first-to-file system will boost patent troll activity, which will a person to be able to file patent applications on inventions that have been released but not yet filed on by smaller companies or underfunded startups. Some argue this will also give larger companies an advantage over smaller companies who do not have equal funds or resources to file patent applications at the same rate large companies do. However something to understand with this change is that while a first-to-file system will go into effect, it is not a true first-to-file system because the one-year grace period on public disclosure will stay in effect. An inventor can publically disclose his invention, through for example a blog post, and is given a one-year grace period from that time of disclosure to file for a patent application. If an inventor publically discloses his invention but does not file with the USPTO right away, he still has one year from that disclosure and will be granted a patent over any other inventor who disclosed later but may have filed earlier. This essentially means that the USPTO will now look to who first filed a patent application or who first publically disclosed the invention, both easier to deduce than which inventor first conceived the invention.
Under this new system well-timed disclosures of inventions by smaller companies will be able to block better funded companies from receiving patents. Disclosure will become of utmost importance as delay of disclosure can allow a competitor to file a patent application on the same technology that they invented later, but filed first. The competitor in that situation would receive the patent under this new system. Companies should begin to create processes that will quickly and effectively identify inventions, as well as whether it is financially beneficial to file a patent application or to publically disclose first.
The Law - Promoting Data Insecurity
The MBTA, U.S. Customs, Apple, and Cisco would like you not to know that their data was or is insecure. Yes, I repeat, their data was, or is, insecure, and they don’t want you to know. Rather than promoting information security by working with security researchers, the MBTA, U.S. Customs, and Cisco would rather file criminal complaints against researchers who find vulnerabilities in their security.
With the advent of the Internet, data stored on computers with access to the Web are prone to access by hackers. Infosec specialists and researchers work hard to protect our data, but the policies that make hacking a criminal activity sometimes also encompasses the work of security researchers. While some organizations agree to have their security measures inspected by researchers, other researchers find vulnerabilities in a company’s security without their express consent. In the name of research, infosec specialists often disseminate their findings at security conferences for the benefit of other researcher’s knowledge and development of techniques.
However, this well-meaning effort to develop better information security has met extreme pushback from companies wishing to maintain their bottom line and avoid bad publicity. Companies with security vulnerabilities may threaten researchers with legal action and filing of criminal complaints in efforts to suppress their findings. This is counterproductive to improving data security, and policy should be construed in favor of promoting more security and public awareness of security breaches.
Minnesota Department of Administration Rules License Plate Reader Data is Private
On Monday March 18, 2013, the Minnesota Department of Administration ruled data collected on the license plate readers is private, including plate numbers, times, dates and locations of vehicle scans, and vehicle photos. Automatic license plate readers (ALPRs) are used by law enforcement to rapidly scan plates and can be used to track wanted vehicles. These cameras take a photograph of every license plate that passes them by, often storing that photo of the vehicle in addition to the plate number, meta-tagging each file with a GPS location, time and date, and converting each number into text that is searched in a database of plate numbers entered manually or selected by an agency. In December of 2012, the City of Minneapolis released a database of over 2 million license plate scans, as reported in the StarTribune.
The reclassification of license plate reader data as private is temporary through 2015. The Minnesota House of Representatives Civil Law Committee addressed Rep. Mary Liz Holberg’s (R) bill to regulate automated license plate reader data to make it classified, require log of use, and require data to be destroyed.
When the City disclosed the data, it nonetheless sought to protect the locations of its stationery cameras by redacting the locations across much of the entries. ALPRs are generally mounted on stationery objects like telephone poles and under bridges or on patrol cars. Among the seven people that requested and received the data from the city were a web developer, a University of Minnesota researcher, and a StarTribune reporter.
This practice sparked a debate in the legislature, a push to reclassify the data as private from Minneapolis Mayor R.T. Rybak (among those tracked), and calls from privacy advocates to narrow limitations on retention policies for such data. Arstechnica reported that a local Minnesota firm, Datalytics had received the database. The firm caught the local police department’s attention when it advised that it was able to pin the locations of the stationery cameras, underscoring the vulnerability exposed by making all of the data collected freely accessible for the police itself. The data had been public by default, and could be stored indefinitely absent state law on the matter. StarTribune reported last August that in Minneapolis the location data is stored for one year, while St. Paul discards it after 14 days, and State Patrol erases it in 48 hours.
The discourse over how to manage the data echoes the concerns of nationwide public interest groups and privacy advocates like the American Civil Liberties Union (ACLU). ACLU noted in July 30, 2012 that only two states had passed legislation barring retention of “non-hit” plate data, which is data on cars that are not wanted by the police. This locational information provides potential for data mining, generating profiles on plate owners and potentially sensitive information about where they have been, raising privacy concerns similar to those raised by warrantless GPS tracking. The license plate reader data in effect becomes a retroactive warrantless surveillance tool. States and municipalities have a valuable tool in license plate readers, but should regulate them with considered data retention and access policies that address the privacy interests of the public to prevent unfettered tracking and abuse of sensitive information.
DMCA v. ADA: How the Digital Millennium Copyright Act Hinders eReaders in providing ADA Compliant Content
The White House recentlyannounced that individuals should be able to unlock their phones. The announcement came at the response to a We the People Petition on the White House website, which garnered over 100,000 signatures from citizens around the country. The announcement was also a response to the decision by the Library of Congress that the unlocking of a phone constituted a violation of the Digital Millennium Copyright Act (DMCA). Under that act, authors and creators of digital content have a vast and varied power to control who, when, and how their copyrighted material is downloaded and distributed. But the flip side of all that protection is that as technology has evolved, the DMCA has expanded its reach over protected content utilizing the newest forms of technology. Each expansion results in growing pains and the latest growing pain hits one of the most vulnerable portions of our society: the disabled.
The Americans with Disabilities Act of 1990 (ADA) was and is designed to protect the disabled portion of our population and guarantee access to both the basic necessities of life, as well as prevent discrimination and promote their quality of life. As such, it protects not only access to buildings, roads, education, and medical care, but also information and how that information is disseminated. And it is here, where technology and information dissemination meet in the digital world, that the DMCA and the ADA clash.
The ADA defines the abilities to hear, see, speak, read, think, and communicate as major life activities and protects them accordingly. The DMCA allows publishers, copyright holders, and other digital rights owners to lock their digital content such that without the proper technology or know-how the material cannot be converted into a format that is useable by disabled individuals. The DMCA also makes the act of conversion of this material into ADA compliant forms illegal.
Users of eReaders and iPads who legally purchase written and copyrighted material, such as books, magazines, and newspapers, are prohibited under the DMCA from converting these materials into formats which could be read to the seeing-impaired. Blu-Ray and standard DVDs distributed through the web or streamed on a user’s computer are coded in a manner which prevents researchers and developers from creating closed-caption and other ADA adaptive technologies so that disabled individuals could fully use legally purchased or streaming content. And even when subtitles are included, any hearing-abled individual can tell you that sometimes the subtitles are incorrect, don’t properly translate, or are so far behind that they only serve to confuse the reader. Bypassing such technology is often easy enough done, but the act of doing it opens the user up to DMCA violations, which would likely cost them more than it is worth to risk the conversion in the first place.
As it stands, really, both statutes need to be updated. The ADA needs to be updated to include the new technologies which provide services to disabled individuals, such as the Internet, eReaders, computers, phones, PDAs, etc. The DMCA needs to be updated to reflect the need for adaptive technologies to be an exception, such as fair use, under the DMCA so that as new technologies come along they aren’t by default restricted to only able-bodied individuals. Technology is designed to make an individual’s life easier. But if the legally purchased content is protected to the extent that disabled individuals risk punishment for adapting it so that they can perform major life functions, then technology and the laws need to adapt. The ADA should trump the DMCA when it comes to technology that is designed to make basic everyday functions easier, like reading, communicating, hearing, and thinking. But, until such time as Congress amends the ADA and DMCA to reflect the technology needs of the disabled, the usefulness of some technologies will be out of the reach of many disabled individuals.
Thursday, April 04, 2013
Court Rules Homeland Security has the Right to Search through Electronics
Edited on: Thursday, April 04, 2013 6:47 PM
Categories: Computers, Internet, Legislation, Privacy
The Ninth Circuit Court of Appeals has ruled, in United States v. Cotterman, that Homeland Security’s border agents may conduct a forensic examination of mobile phones, laptops, memory cards in cameras, and many other electronics, as long as the border agents have the “reasonable suspicion” to do so. In Cotterman, Howard Cotterman and his wife were driving home to the U.S. from a vacation in Mexico, eventually reaching Lukeville, Arizona, Port of Entry. During the primary inspection, the border agents found a hit on Howard, which indicated that he was a sex offender - he was previously convicted: on two counts of use of a minor in sexual conduct; two counts of lewd and lascivious conduct upon a child; and three counts of child molestation.
Based on Howard's history and the fact that he was potentially involved in child sex tourism, the border agents performed a secondary inspection on him and his wife, and they were told to exit their car, subsequently leaving their belongings behind. The agents searched the vehicle and retrieved two laptops and three digital cameras; upon reviewing these items, it appeared that these devices only contained family and other personal photos, along with other password-protected files. The agents retained the two labtops and one camera for forensic reviews, where a computer program would be used to copy the hard drives of the electronic devices and extract information that was deleted. Upon inspecting the two laptops, the inspector found about hundreds of images of child pornography, stories, and videos depicting children. Based on this evidence, the grand jury indicted Howard Cotterman for various offenses related to child pornography. In his defense, Cotterman argued that the evidence should not have been admitted because it violated his Fourth Amendment protection from warrantless searches.
Before examining the details of the case, the Ninth Circuit Court of Appeals noted that case law in this field is ambiguous, noting that the Supreme Court “has never defined the precise dimensions of a reasonable border search, instead pointing to the necessity of a case-by-case analysis.” In fact, the court in Cotterman cited to U.S. v. Duncan in explaining that "reasonableness, when used in the context of a border search, is incapable of comprehensive definition or of mechanical application.” As a result, the court noted that it must evaluate the totality of the case, rather to the specifics. The court found that although Cotterman’s previous convictions do not support the reasonable suspicion to conduct an extensive forensic search, the border agents’ understanding of the objective facts became the baseline for determining reasonable suspicion. The court determined that it was reasonable for the border agents to have acted the way they did given the fact that Mexico is a country associated with sex tourism and that Cotterman was previously convicted as a sex offender.
It appears that the Ninth Circuit Court of Appeals made its decision in a punative, yet politically and publically popular way; it did not want to let a sex offender go unpunished in light of the amount of child pornography that was found in his possession. Although the court made well rationalized decisions as to why the search was reasonable, the idea that courts should look to the totality of the circumstances for example, it appears that there is still a violation of one’s Fourth Amendment right from warrantless searches. Because the law in this field is vague and fairly new, we should expect more litigation in this area soon and it shouldn’t be a surprise if decisions vary in their outcome and reasoning.
Wednesday, April 03, 2013
Privacy on the Internet? “Do Not Track” Won’t Get Any Traction So Long as Compliance is Voluntary.
A quick visit to the Ads Preferences section in the personal settings of my Gmail account reveals my age, an affinity for all types of news (local, newspaper, international), an interest in the law and government, and an unhealthy obsession with coffee. Unless you’ve never Google-d anything, the search engine giant probably has very similar – and eerily accurate - information about you. But what happens when you’d like to maintain some semblance of privacy on the world wide web? The onus is largely on internet companies to be forthright about the kind of information they collect about users and how they use it.
Back in May 2011, Senator Jay Rockefeller (D. W.Va.) introduced the Do Not Track Online Act, which subsequently died in committee. Faced with the threat of regulation, many internet companies vowed to increase privacy settings, become more transparent about how personal information is used, and allow users to exercise more control over whether their information is collected at all. It comes as no surprise that very few companies actually followed through with these vows. Privacy settings on websites like Facebook are notoriously difficult to navigate and every time we click “I have read and agree to the terms of service” we give up a little slice of our private information without fully understanding what it is we’re allowing these companies access to.
Some form of a “Do Not Track” setting currently exists in many of the most popular browsers but the problem is that compliance with the wishes of internet users by internet companies is entirely voluntary. Essentially, companies are free to honor or ignore their users request to not have their information collected and used for advertising or other purposes. Since many companies don’t honor the “Do Not Track” request, many consumer advocate groups are calling for the Federal Communications Commission to step in and require companies to give users the information necessary to grant internet companies informed consent, in other words "opt-in," to use their personal data. Senator Rockefeller has reintroduced the Do Not Track Online Act that would give the FCC the authority to create rules around the collection of personal user information online.
In an Ad Week article Senator Rockefeller is quoted as saying, "[o]nline companies are collecting massive amounts of information, often without consumers' knowledge or consent . . . [and] [m]y bill gives consumers the opportunity to simply say 'no thank you' to anyone and everyone collecting their online information. Period." Senator Rockefeller’s proposed legislation does not try to do away completely with companies utilizing, or making money off of the information of their users. Instead, it requires companies to fully disclose the information they collect and how that information is used. It should be a welcome step forward for consumers.
Friday, March 29, 2013
Podcasters Hope to Raise SHIELD Against Patent Trolls
Categories: Business, Computers, Internet, Legislation, Licensing, Patent
Ahead of the standard introduction to his February 28, 2013 episode of his WTF Podcast, standup comic Marc Maron decided to shine a light on patent trolls, or “non-practicing entities” ("NPEs") as they are otherwise called. These organizations have been characterized as shell companies that procure broad patent portfolios, do not produce content, and sue inventors for patent infringement if the invention allegedly incorporates a patent held in the portfolio. Winning in court is not even the endgame for the troll here, because the defendant may be someone who can ill afford to continue in drawn-out litigation, and therefore the inventor may opt to settle.
Protracted patent litigation is well-trodden ground for the likes of Apple and Samsung. Apple has been criticized for wielding broad patents against competitors like Android with respect to touchscreen smartphone interfaces. On a different scale, this is occurring in the arena of podcasting. A February 7, 2012, patent issued for Personal Audio LLC that it is being put forth as essentially preempting podcasters in the medium, many of whom are small operations out a garage speaking to their audiences in weekly installments on all matters of, well, anything at all. Personal Audio has actually taken on Apple in the past and won $8 million in a suit for infringement of downloadable playlists.
Personal Audio’s patent is said to be the precursor to podcasting, as it set forth a “system for disseminating media content representing episodes in a serialized sequence.” Some of the podcasters Personal Audio has reached out to and invited to apply for a license include Maron, Adam Corolla, and Stuff You Should Know. Personal Audio has been criticized for having “not sold a product since 1998.”
The SHIELD Act, an acronym for Saving High-Tech Innovators from Egregious Legal Disputes, was initially introduced in 2011 by Rep. Peter DeFazio (D-OR) and Rep. Jason Chaffetz (R-UT) and intended to create a loser-pays rule by which the loser of the patent infringement or validity suit would be made to pay the costs of the opponents’ fees for the proceedings. The idea is to deter would-be litigants from filing frivolous suits regarding computer hardware and software patents, specifically, “where the court finds the claimant did not have a reasonable likelihood of succeeding.” The software portion is defined as covering “(A) any process that could be implemented in a computer regardless of whether a computer is specifically mentioned in the patent; or (B) any computer system that is programmed to perform a process described in subparagraph (A).” The revised bill intends to expand its scope to all patents to protect not just technology companies, but retailers, manufacturers, podcasters, and municipalities from being subjected to predatory litigation, as expressed in a press release from Rep. Chaffetz’s site.
It would seem like an oddly unjust policy to allow for a patent to cover a medium in its entirety; in the case of podcasts, an application of electronic audio files in a serialized form disseminated online. Legislative efforts like the SHIELD Act could help prevent patent litigation undertaken in bad faith.
For many podcasters, monetizing the podcast is an issue. While the format may be inexpensive, with the producers of the content often using nothing more than their microphones and a computer for interviews, it is not generally lucrative in a direct way. It seems that much of the value derived from the podcast for the broadcaster/podcaster is the goodwill it generates with the audience. It can also be an effective means of self-promotion; for example, a comic promoting his upcoming appearances and shows. Another mechanism for income is the utilization of ads for things like stamps.com or audible.com. This is all to say that podcasters may make for an odd target for this type of litigation, even if some podcast authors are more well-known and have somewhat deeper pockets. Is it because some in this demographic earn just enough to yield a promising settlement but not enough to pursue all-out “sport of kings” patent litigation?
There is also a question as to whether there should be a distinction made between original content available exclusively in the podcast format from, for example, a radio show on NPR that is broadcast live on terrestrial radio and via livestreaming online, and then packaged for downloads later as a podcast. Should podcasters now have to consider the high price of patent litigation just a cost of doing business?
As suggested in some comments on related articles like Techcrunch.com’s The Death of the Non-Practicing Entity?, additional measures could be taken to close potential loopholes, and to craft legislation to address not only NPEs, but NPEs that purport to be practicing entities. Arguments against the SHIELD Act suggest that it might stifle startup companies that have legitimate patent claims from litigating those claims, because the costs would be too burdensome if unsuccessful. Addressing the categories of companies that occupy the grey areas between practicing entities and NPEs might address that concern in some measure. What still remains is the larger issue of fairness and incentives created by the current standards used by the US Patent and Trademark Office in patent examinations and whether they are truly effective in promoting innovation, which was the original intent of patent protection in the United States Constitution.
Monday, March 25, 2013
Cameras in the Courtroom in Ohio
Edited on: Monday, March 25, 2013 10:27 PM
Categories: Computers, Entertainment, Internet, Legislation
Permitting cameras inside of America’s courtrooms would allow the public the opportunity to see and learn more about the daily occurrences and processes of our nation’s legal system. Opponents argue that such coverage could pose harmful effects surrounding the privacy of those involved in the proceedings. Initial disfavor for banning cameras occurred after sensationalized public trials, such as the trial of Bruno Hauptmann who was accused of the kidnapping and murder of Charles Lindberg’s baby. This frenzy was furthered by the O.J. Simpson case in the 1990s. Proponents of cameras suggest that by providing insight into daily activities, the cameras would reveal to viewers that day-to-day activities are not always exciting, separating typical court proceedings from television show portrayals and dramatic public trials.
The public has a legal right to attend court and most courts are open and accessible to the public. However, many of the court proceedings occur during normal business hours so attending court may prove impracticable for most working Americans. While individuals have a right to access the proceedings, there is no First Amendment right to have cameras in the courtroom. Fundamental differences exist between attending court and having the proceedings recorded and broadcast on television or over the Internet.
There are different ways that the public can receive this information; one example being through a live-feed, or videos posted online. Live streaming video footage can be accessed on court’s websites and is more commonly used in state courts. Federal courts tend to be more restrictive and may choose to videotape the proceedings and then post those videos online. Federal courts also impose greater restrictions than state courts, including: no live streaming video (videos will be archived and posted online at a later date), only civil matters may be filmed, recordings are made by court employees rather than the media, and consent for the recording must be granted by the judge and both parties.
Many Americans are accustomed to receiving instant updates and news stories via social media outlets on the Internet. The benefit of facilitating access to courts online in a format that is user-friendly may be a wider appeal to a broader, younger audience. On the other hand, social media was not a concern when cameras were first introduced into courtrooms. Instant responses by social media and clips from trials going “viral” may occur as a result of our connectedness and globalization. With today’s ever-connected society, the reactions may divert too much attention in a way that threatens a fair trial because of adverse publicity.
Opponents point to privacy concerns as a major downfall of implementing cameras. Some have noted that cameras can be intimidating for witnesses and jurors and juror anonymity certainly should be a major concern with cameras in a courtroom. A ban on filming the jury at any point in the proceedings is one suggestion for removing any nervousness or fear of retaliation. Another issue is the security of witnesses, especially in regards to "snitches" (confidential informants), undercover investigators, and victims of sexual abuse and domestic violence.
The presence of cameras is an issue that should and will be dealt with in courts of every level; from local courthouses to the Supreme Court. Historically, cameras have been banned from the Supreme Court, but the newest members of the Court, Justices Sotomayor and Kagan, initially supported the idea of cameras during their confirmation hearings. However, once confirmed, both Justices changed their positions and supported a continued ban on cameras. They expressed concerns that Justices will play to the camera, and that the clips will be used for unintended purposes, such as political ads. Maybe it is too early to tell, but perhaps broadcast of courtroom proceedings will be comparable to C-SPAN coverage in the future, and it will serve as a useful and beneficial tool, allowing for greater access and understanding of what happens in America’s courtrooms.
Friday, March 22, 2013
Cable a la Carte? Don’t Get Your Hopes Up
Today’s cable industry provides TV subscribers with more channels than they could ever want or need, but at what cost? What if subscribers could pick and choose only the channels they know they’ll watch instead of having to pick a “bundle” of channels together? Some consumer advocates are hoping such “a la carte” cable subscriptions will be the result of a recent Antitrust lawsuit Cablevision filed in Federal court against Viacom. Cablevision alleges Viacom forces the company to carry (and pay for) fourteen “lesser watched” channels in order to have access to Viacom’s popular channels. The added costs, Cablevision says, are passed on to the consumer.
In a recent Wall Street Journal article a spokesman for Cablevision said “without the 'take it or leave it' requirements of bundled programming packages at a wholesale level, cable companies could tailor smaller and lower-priced packages that could offer flexibility and have great appeal to specific interests and audiences." While it would be nice to think that Cablevision is out championing for consumers and hoping to pass along lower prices, Viacom doesn’t see things that way, with a spokesman for the company quoted in All Things D as saying the lawsuit a “transparent attempt by Cablevision to use the courts to renegotiate our existing two month old agreement."
With many television shows readily available online some people have already “cut the cord” and unsubscribed from traditional cable. As online streaming technology continues to improve one would hope it’s only a matter of time before cable goes the way of the land-line telephone. At the end of the day, both Cablevision and Viacom are fighting to prevent that from happening. Cablevision wants to keep customers by offering competitive prices and Viacom wants to protect its bundle – because goodness knows it wouldn’t make any money on MTV3 if we all weren’t forced to subscribe to it.
A la carte programming though? Probably not in the near future, unfortunately. If a la carte programming were available it would likely be on the internet – and it’s certainly not what Cablevision is seeking from this Antitrust suit. Cablevision wants to be able to buy only the top channels from Viacom so Cablevision can turn around and bundle them all together for their subscribers. So even if Cablevision wins the lawsuit consumers will likely still have channels they don’t watch (and will never watch ), but perhaps they’ll just have fewer of them.
Registered sex offenders’ right to free speech – Is a ban on social media unconstitutional?
In January 2013, the United States Seventh Circuit Court of Appeals struck down an Indiana Law that made it a misdemeanor (or, in some instances, felony) for registered sex offenders to use a social networking website. Implying that the law was too broad, the panel of judges declared that while the state has a legitimate interest in protecting the safety and welfare of its children, the law "targets substantially more activity than it seeks to redress.”
In the suit, initiated anonymously by a registered sex offender released from prison in 2003, “John Doe” alleged that the law infringed upon his First Amendment constitutional rights. After the trial court found the law constitutional, the case went before the Seventh Circuit who declared that laws implicating the First Amendment must be tailored narrowly. They found that a blanket ban on social media for all registered sex offenders does not fit within this narrow interpretation.
One reason the argument before the court was so complex was because it was simultaneously over- and under- inclusive in terms of the outlets it restricted. It banned sex offenders from using not only sites that allow minors to sign up, but also ones that allow users to create a website or a personal profile, and that provide users with an opportunity to communicate with another person online. If this definition were applied literally, even sites such as Amazon.com, YouTube and CNET, as well as thousands of other blogs and retail sites could have been included, as each afford members the opportunity to create profiles and comment and interact with each other.
While this decision will most certainly be precedent for other states considering legislation that monitors sex offender internet use, other states such as New Mexico are already considering enacting similar laws. A proposal in New Mexico introduces legislation that would ban all registered sex offenders from using any websites, including social media, that incorporate instant messaging or chat room features that the sex offender knows include individuals under eighteen years old. The first violation of this law would be considered a misdemeanor, and any subsequent violations would be treated as felonies.
Opponents of this proposed New Mexico law (and other similar laws proposed in Louisiana and Nebraska) argue that these laws are unconstitutional attempts to severely limit free speech and do not consider that many registered sex offenders did not commit a crime against a minor. On the other side of the argument, however, proponents of these laws present the argument that broad legislation banning the use of any website that allows communication between members and the creation of profiles prohibits substantial protected speech. While the protection of minors is a legitimate state interest, it is not substantial enough to so thoroughly infringe and restrict any registered sex offender’s free speech rights.
While there is still work to be done in order to strike a balance between the protection of minors on the internet and the preservation of First Amendment free speech rights of registered sex offenders, legislators are currently working to devise a narrower proposal that will achieve both ends. As of yet, it is still uncertain what the fate will be for those who have previously been charged under the newly-struck-down Indiana law.
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