Blaming online services “that are actively fighting dangerous content when bad actors manage to evade detection systems is not the answer,” said CCIA President Matt Schruers in a statement Thursday about oral arguments at the Supreme Court this week on whether social media platforms can be held liable for aiding and abetting terrorists (see 2301120061 and 2302210062). “Companies would likely respond by either over-sanitizing their communities or throwing up their hands and no longer patrolling for dangerous content, lest their efforts to protect users engender more lawsuits,” said Schruers. “No one wants to see this type of material online: not users, not advertisers, nor the services themselves. However, penalizing services that attempt to combat extremism when they miss needles in haystacks will discourage companies from searching at all, and make for a more dangerous internet.”
The Supreme Court asked Apple to file a response by March 15 to the Jan. 23 cert petition from two dozen iPhone users seeking uniformity in circuit courts’ rulings on cellphone safety, said a text-only entry Monday (docket 22-698). Apple’s Jan. 26 waiver said Apple wouldn’t file a response to the petition unless SCOTUS requested one. The petition said there's profound inconsistency among the appellate courts over whether certain FCC guidelines “impliedly preempt” state-law claims about cellphone safety (see 2301270065). SCOTUS has a “golden opportunity” to bring uniformity to the decision-making, it said. The petition seeks a reversal of the 9th U.S. Circuit Court of Appeals opinion on Aug. 26 affirming the district court’s summary judgment for Apple, based on federal law preemption of the state-law claims. The petition is in circulation for the justices' Friday conference.
The Supreme Court circulated Blanca Telephone’s Jan. 9 cert petition for the justices’ Feb. 24 conference, said a text-only entry Wednesday in docket 22-645. Blanca is seeking SCOTUS enforcement of the 10th U.S. Circuit Appeals Court’s May 2021 mandate directing the FCC to collect an old USF debt only through “nonpunitive administrative offset” means. Blanca alleged in a Jan. 16 supplement the FCC retaliated against the ILEC’s cert petition by abruptly canceling its spectrum lease application for failure to make payment on a delinquent USF debt (see 2301190001).
Two days after the U.S. Appeals Court for the Federal Circuit denied Nimitz Technologies’ combined petition for panel rehearing and rehearing en banc of the court’s previous denial of its petition for mandamus relief (see 2302010033), Nimitz asked the Federal Circuit in a motion Thursday (docket 23-103) to stay issuing the mandate in its case, pending the filing of a mandamus or cert petition at the Supreme Court. A mandate would send the case back to Chief U.S. District Judge Colm Connolly in Delaware for enforcement of his Nov. 10 order for Nimitz to produce bank records, emails and other materials for his investigation into any third-party funding that contributed to the filing of four Nimitz patent infringement lawsuits against Bloomberg, BuzzFeed, Cnet and Imagine Learning (see 2212230001). Nimitz asserts the materials Connolly is demanding are protected by attorney-client privilege. The issues to be presented to the Supreme Court “present a substantial question,” and there is good cause for a stay, said the Nimitz motion. By denying the combined rehearing petition, the Federal Circuit required Nimitz to disclose communications “that are protected by the attorney-client privilege to an adversary without any suggestion, much less finding, that any exception to the attorney-client privilege applies in this case,” it said. Four Supreme Court cases, dating to the 1981 decision in Upjohn v. U.S., 449 U.S. 383, 389, “uphold the attorney-client privilege and preclude the disclosure of privileged communications to the district court, which is the adversary in this case,” it said. Nimitz is thus “raising an issue which has never been addressed by any court,” it said. Any disclosure to Connolly of privileged communications would be permanent and “cannot thereafter be ameliorated,” it said.
The government waives its right to file a response to Blanca Telephone’s petition for cert at the Supreme Court, “unless requested to do so” by SCOTUS, said U.S. Solicitor General Elizabeth Prelogar in a waiver Tuesday (docket 22-0645). Blanca alleges the FCC retaliated against the ILEC days after it filed its cert petition to enforce the 10th U.S. Circuit Appeals Court’s May 2021 mandate directing the agency to collect an old USF debt only through “nonpunitive administrative offset” means (see 2301190001).
A DOJ filing in U.S. Supreme Court Section 230 caseTwitter v. Taamneh “wrongly” narrows the circumstances under which entities can be held liable for aiding terrorists, said a group of law professors who specialize in counterterrorism, in an amicus brief posted in docket 21-1496 Wednesday. DOJ erred in saying plaintiffs arguing that an entity had violated the Antiterroism Act or the Justice Against Sponsors of Terrorism Act needed to show that an entity had “anything more than an arms-length transactional relationship” with terrorists, the filing said. Such allegations “are not necessary” to state a claim under the anti-terrorism statutes, the brief said. The question of whether an entity provided substantial assistance to ISIS “turns not on whether its services were bespoke; it turns on whether the services had a meaningful impact on ISIS’s ability to carry out illicit activities,” the filing said.
The Supreme Court denied a cert petition filed by Charter on a 1st Circuit U.S. Court of Appeals decision that the Cable Act doesn't preempt Maine's cable TV charges prorating law (see 2212050004), per a docket notation Monday (docket 21-1539).
Maine, in defending the 1st U.S. Circuit Court of Appeals' holding in favor of the state's prorated cable subscriber refunds law, offers no plausible defense of that ruling, petitioner Charter Communications told the Supreme Court Wednesday (docket 21-1539) in reply to the state's opposition to Charter's cert petition (see 2212050004). It said Maine's argument the rebate requirement isn't rate regulation because Charter can set the pre-rebate price however it wants implies that a law letting cable companies set rates but to rebate anything they charge in excess of $25 would be allowed. The pro rata rebate "authorizes precisely the sort of rate regulation that the Cable Act expressly prohibits," Charter said. It said the 1st Circuit's "flawed and atextual decision" goes contrary to other courts' considerations about whether the Cable Act preempts proration laws. SCOTUS needs "to resolve the confusion on this question and to ensure the Cable Act -- and other express preemption provisions -- are interpreted according to their plain terms," the company said. Maine didn't comment Thursday.
The U.S. Supreme Court will hear oral argument in web platform liability cases Gonzalez v. Google and Twitter v. Taamneh on February 21 and 22, said a release Monday. Gonzalez v. Google’s oral argument will be Feb. 21, and for Twitter v. Taamneh Feb. 22. Both cases involve the question of whether Internet companies can be held liable for the activities of terrorist groups that use their platforms. SCOTUS rulings in either case are expected to have implications for the future of Internet content moderation (see 2212010070).
Supreme Court Chief Justice John Roberts again granted Dish Network designated entities Northstar Wireless and SNR Wireless an extension of the deadline to file a cert petition, per a notation Friday in SCOTUS docket 22A401. The deadline, which had been Friday, is now Jan. 15. Northstar counsel requested the extension to get up to speed on the challenge by Northstar and SNR of the U.S. Court of Appeals for the D.C. Circuit's decision upholding the FCC's denial of AWS-3 auction bidding credits for the DEs (see 2212060056). Roberts previously granted an extension from Nov. 16 to Dec. 16 (see 2211080018).