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Pending before the Supreme Court is a separate case, Elonis v. United States, that raises the same issue ' whether the law against threats only covers those where the speaker intends that the threats be carried out, or a broader category of threats in which a “reasonable person” reading the postings would find them threatening, regardless of the speaker's intent. The high court heard arguments in Elonis on Dec. 1. See, “Online Extra: High Court Weighs Online Speech Protections,” in our December 2014 issue.

Wheeler was convicted and sentenced to 40 months in prison under the federal law for posting Facebook updates from Italy in 2012 that urged his followers to “kill cops, drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines.” Wheeler, who included the names of certain officers, was upset about a drunk driving arrest that he believed was a “set-up.”

In another Facebook update, Wheeler said: “If my dui charges are not dropped, commit a massacre in the stepping stones preschool and day care, just walk in and kill everybody.” He was referring to a preschool near where he lived in Grand Junction, CO.

When he was arrested, Wheeler said he had no religious followers and thought he had deleted all his Facebook friends.

But some people, including local police officers, did see his postings and “took the threats seriously,” according to the government's brief in the Tenth Circuit. Police increased patrols near the preschool. But Wheeler's lawyers asserted that “calling generally on others to commit violence, particularly others who don't exist, does not constitute a threat as a matter of law.” See, http://bit.ly/1tgzOmv.

In a separate case last September, the Tenth Circuit ruled that in threat cases, the government has to prove subjective intent on the part of the speaker. See, “Emailed Threats Conviction Reversed by Appeals Court,” The National Law Journal (Sept. 16, 2014). Because of that ruling, the Tenth Circuit decision on Jan. 15 said that Wheeler's jury should have been instructed on the intent element. The government argued that the flawed jury instruction was “harmless error” because the evidence presented at trial made Wheeler's intent to threaten obvious.

“We disagree,” Judge Paul Kelly Jr. wrote for the panel. “This is not an instance where an omitted element [from the jury instructions] was supported by uncontroverted evidence.” Joining the decision were senior judges Bobby Baldock and David Ebel.

The panel said Wheeler should be retried with corrected jury instructions. The Justice Department had suggested the Tenth Circuit should wait for the Supreme Court to rule in Elonis, but Kelly wrote that because Wheeler is in prison, “we should not delay resolution of this case.”

' Tony Mauro, ALM Media

Judge Gives Go-Ahead To Facebook Privacy Suit

Another federal judge has put Silicon Valley on notice that scanning user communications without consent may run afoul of the federal Wiretap Act, 18 U.S.C. '2510, et. seq.

Late last year, U.S. District Judge Phyllis Hamilton of the Northern District of California refused to dismiss a proposed privacy class action against Facebook Inc. over its screening of users' private messages. Plaintiffs lawyers at Lieff Cabraser Heimann & Bernstein sued Facebook in 2013, claiming that the company illegally intercepted the content of private messages whenever users included a link to an outside website.

Hamilton wrote that determining whether Facebook violated federal and state privacy laws would require a factual inquiry into its handling of messages. The use of a so-called Web crawler to scan the content of users' messages could constitute an interception under the Wiretap Act, she wrote, considering that Facebook users did not give their express consent for such scanning.

Facebook's lawyers at Gibson, Dunn & Crutcher have argued that any processing of messages carried out in conjunction with their delivery should not be considered an interception under the Wiretap Act, which carries statutory damages of up to $10,000 per violation. The social network analyzes messages to prevent hacking and detect spam, partner Joshua Jessen told Hamilton at a hearing in October. Additionally, such activity is shielded from liability under the Wiretap Act, Jessen argued, because it falls within Facebook's “ordinary course of business” as an electronic communication service provider.

The exception has become a critical battleground in online privacy litigation and Hamilton's order in Campbell v. Facebook, 13-5996, is the third from a Northern District judge to parse its meaning.

Hamilton said that without more specifics on the company's practices, she wasn't willing to adopt Facebook's broad interpretation of the “ordinary course of business” exception.

“The statute's inclusion of the word 'ordinary' implies some limits on a company's ability to self-define the scope of the exception,” she wrote. “An electronic communications service provider cannot simply adopt any revenue-generating practice and deem it 'ordinary' by its own subjective standard.”

Ruling in 2013, U.S. District Judge Lucy Koh found Google's scanning of Gmail to help sell targeted ads wasn't exempt activity. However, U.S. Magistrate Judge Paul Grewal dismissed a separate suit challenging Google's collection of user data, finding the exemption bestows broad protection for the “customary and routine” business practices of electronic communication service providers.

Using her colleagues' decisions as guideposts, Hamilton said there shouldn't be a “generic, one-size-fits-all approach,” and judges should consider the details of particular businesses to determine whether the exception applies. She offered to reconsider the question with regard to Facebook's scanning practices based on a more complete evidentiary record.

For now, her order allows illegal interception claims to proceed under the Wiretap Act and California's analogous Invasion of Privacy Act (CIPA). Hamilton knocked out a separate CIPA claim as well as a claim under the state's Unfair Competition Law.

' Vanessa Blum, The Recorder

Appeals Court: No Privacy for Facebook Photo In Slip-and-Fall Case

It turns out there's “no constitutional right to privacy” on Facebook, and it's not reasonable to expect otherwise.

That's what the Fourth District Court of Appeal concluded on Jan. 7 when it sided with mega retailer Target Corp. against a shopper who filed a slip-and-fall personal injury case.

In defending against the suit filed by Maria Leon Nucci and husband Henry Leon, Target attorneys combed through the shopper's social media pages.

Nucci claimed a store fall caused injury, medical expenses, lost earnings and other damages.

But two days before Target took her deposition in 2013, its attorneys looked at her Facebook page, which they say displayed 1,285 photos. When the number of photos on the site dropped to 1,249, Target argued it was entitled to view the profile and moved to compel Nucci to preserve her Facebook photos.

In a broad stroke favoring the retailer's discovery efforts, the trial court required Nucci to disclose all social media sites she used along with her cell phone numbers and service carriers. It also required screen shots of photographs associated with the accounts and a list of incoming and outgoing cell phone calls on the day of the fall.

“This case stands at the intersection of a litigant's privacy interests in social media postings and the broad discovery allowed in Florida in a civil case,” Judge Robert Gross wrote in the unanimous opinion. Judges Matthew Stevenson and Jonathan Gerber concurred.

The judges concluded users of Facebook and other social media sites have no reasonable expectation of privacy.

The panel affirmed a decision by Broward Circuit Judge John J. Murphy.

' Samantha Joseph, Daily Business Review

In This Facebook Threats Case, No Wait for High Court

For the second time, a federal appeals court has decided not to wait for the U.S. Supreme Court to rule on whether the First Amendment invalidates a federal law that could make it a crime to post threatening statements on Facebook.

The U.S. Court of Appeals for the Tenth Circuit ruled on Jan. 15 in United States v. Wheeler, No. 14-1031, that a jury should decide whether Kenneth Wheeler of Colorado actually intended to threaten anyone when he wrote in Facebook posts that his “religious followers” should kill police officers and children.

Pending before the Supreme Court is a separate case, Elonis v. United States, that raises the same issue ' whether the law against threats only covers those where the speaker intends that the threats be carried out, or a broader category of threats in which a “reasonable person” reading the postings would find them threatening, regardless of the speaker's intent. The high court heard arguments in Elonis on Dec. 1. See, “Online Extra: High Court Weighs Online Speech Protections,” in our December 2014 issue.

Wheeler was convicted and sentenced to 40 months in prison under the federal law for posting Facebook updates from Italy in 2012 that urged his followers to “kill cops, drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines.” Wheeler, who included the names of certain officers, was upset about a drunk driving arrest that he believed was a “set-up.”

In another Facebook update, Wheeler said: “If my dui charges are not dropped, commit a massacre in the stepping stones preschool and day care, just walk in and kill everybody.” He was referring to a preschool near where he lived in Grand Junction, CO.

When he was arrested, Wheeler said he had no religious followers and thought he had deleted all his Facebook friends.

But some people, including local police officers, did see his postings and “took the threats seriously,” according to the government's brief in the Tenth Circuit. Police increased patrols near the preschool. But Wheeler's lawyers asserted that “calling generally on others to commit violence, particularly others who don't exist, does not constitute a threat as a matter of law.” See, http://bit.ly/1tgzOmv.

In a separate case last September, the Tenth Circuit ruled that in threat cases, the government has to prove subjective intent on the part of the speaker. See, “Emailed Threats Conviction Reversed by Appeals Court,” The National Law Journal (Sept. 16, 2014). Because of that ruling, the Tenth Circuit decision on Jan. 15 said that Wheeler's jury should have been instructed on the intent element. The government argued that the flawed jury instruction was “harmless error” because the evidence presented at trial made Wheeler's intent to threaten obvious.

“We disagree,” Judge Paul Kelly Jr. wrote for the panel. “This is not an instance where an omitted element [from the jury instructions] was supported by uncontroverted evidence.” Joining the decision were senior judges Bobby Baldock and David Ebel.

The panel said Wheeler should be retried with corrected jury instructions. The Justice Department had suggested the Tenth Circuit should wait for the Supreme Court to rule in Elonis, but Kelly wrote that because Wheeler is in prison, “we should not delay resolution of this case.”

' Tony Mauro, ALM Media

Judge Gives Go-Ahead To Facebook Privacy Suit

Another federal judge has put Silicon Valley on notice that scanning user communications without consent may run afoul of the federal Wiretap Act, 18 U.S.C. '2510, et. seq.

Late last year, U.S. District Judge Phyllis Hamilton of the Northern District of California refused to dismiss a proposed privacy class action against Facebook Inc. over its screening of users' private messages. Plaintiffs lawyers at Lieff Cabraser Heimann & Bernstein sued Facebook in 2013, claiming that the company illegally intercepted the content of private messages whenever users included a link to an outside website.

Hamilton wrote that determining whether Facebook violated federal and state privacy laws would require a factual inquiry into its handling of messages. The use of a so-called Web crawler to scan the content of users' messages could constitute an interception under the Wiretap Act, she wrote, considering that Facebook users did not give their express consent for such scanning.

Facebook's lawyers at Gibson, Dunn & Crutcher have argued that any processing of messages carried out in conjunction with their delivery should not be considered an interception under the Wiretap Act, which carries statutory damages of up to $10,000 per violation. The social network analyzes messages to prevent hacking and detect spam, partner Joshua Jessen told Hamilton at a hearing in October. Additionally, such activity is shielded from liability under the Wiretap Act, Jessen argued, because it falls within Facebook's “ordinary course of business” as an electronic communication service provider.

The exception has become a critical battleground in online privacy litigation and Hamilton's order in Campbell v. Facebook, 13-5996, is the third from a Northern District judge to parse its meaning.

Hamilton said that without more specifics on the company's practices, she wasn't willing to adopt Facebook's broad interpretation of the “ordinary course of business” exception.

“The statute's inclusion of the word 'ordinary' implies some limits on a company's ability to self-define the scope of the exception,” she wrote. “An electronic communications service provider cannot simply adopt any revenue-generating practice and deem it 'ordinary' by its own subjective standard.”

Ruling in 2013, U.S. District Judge Lucy Koh found Google's scanning of Gmail to help sell targeted ads wasn't exempt activity. However, U.S. Magistrate Judge Paul Grewal dismissed a separate suit challenging Google's collection of user data, finding the exemption bestows broad protection for the “customary and routine” business practices of electronic communication service providers.

Using her colleagues' decisions as guideposts, Hamilton said there shouldn't be a “generic, one-size-fits-all approach,” and judges should consider the details of particular businesses to determine whether the exception applies. She offered to reconsider the question with regard to Facebook's scanning practices based on a more complete evidentiary record.

For now, her order allows illegal interception claims to proceed under the Wiretap Act and California's analogous Invasion of Privacy Act (CIPA). Hamilton knocked out a separate CIPA claim as well as a claim under the state's Unfair Competition Law.

' Vanessa Blum, The Recorder

Appeals Court: No Privacy for Facebook Photo In Slip-and-Fall Case

It turns out there's “no constitutional right to privacy” on Facebook, and it's not reasonable to expect otherwise.

That's what the Fourth District Court of Appeal concluded on Jan. 7 when it sided with mega retailer Target Corp. against a shopper who filed a slip-and-fall personal injury case.

In defending against the suit filed by Maria Leon Nucci and husband Henry Leon, Target attorneys combed through the shopper's social media pages.

Nucci claimed a store fall caused injury, medical expenses, lost earnings and other damages.

But two days before Target took her deposition in 2013, its attorneys looked at her Facebook page, which they say displayed 1,285 photos. When the number of photos on the site dropped to 1,249, Target argued it was entitled to view the profile and moved to compel Nucci to preserve her Facebook photos.

In a broad stroke favoring the retailer's discovery efforts, the trial court required Nucci to disclose all social media sites she used along with her cell phone numbers and service carriers. It also required screen shots of photographs associated with the accounts and a list of incoming and outgoing cell phone calls on the day of the fall.

“This case stands at the intersection of a litigant's privacy interests in social media postings and the broad discovery allowed in Florida in a civil case,” Judge Robert Gross wrote in the unanimous opinion. Judges Matthew Stevenson and Jonathan Gerber concurred.

The judges concluded users of Facebook and other social media sites have no reasonable expectation of privacy.

The panel affirmed a decision by Broward Circuit Judge John J. Murphy.

' Samantha Joseph, Daily Business Review