Communication Law and Policy

ISSN: 1081-1680 (Print) 1532-6926 (Online) Journal homepage: http://www.tandfonline.com/loi/hclw20

Communication Law, Technological Change, and

the New Normal
Enrique Armijo
To cite this article: Enrique Armijo (2014) Communication Law, Technological
Change, and the New Normal, Communication Law and Policy, 19:4, 401-415, DOI:
10.1080/10811680.2014.955761
To link to this article: http://dx.doi.org/10.1080/10811680.2014.955761

Published online: 22 Oct 2014.

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Date: 26 September 2016, At: 14:52

19 COMM. L. & POLY 401415 (2014)

Copyright Taylor & Francis Group, LLC
ISSN: 1081-1680 print / 1532-6926 online
DOI: 10.1080/10811680.2014.955761

COMMUNICATION LAW, TECHNOLOGICAL

CHANGE, AND THE NEW NORMAL
ENRIQUE ARMIJO
Our current debates concerning communication law and policy would
have been unrecognizable to us twenty years ago. Few predicted in 1993,
when the World Wide Web was just five years old, that in two decades,
the functions of a word processor, camcorder, telephone, camera and
pager could all fit within a single, palm-sized device let alone that
the same device could be connected to hundreds of millions of like
devices and distribute text, photographs and video in milliseconds.
Todays prognostications are often tomorrows follies. But as the articles
in this issue show, communication scholars continue the task of fitting
current law into the changed communication spaces created by the
digital revolution. After surveying these changes, this article argues
that over the next two decades, communications-related technological
change will be felt in two areas that have long been the province of
state tort law: reputation and privacy.

Given Time Warners vast holdings in all media [and AOLs power in the
online space], the ordinary citizen, whether a reader, TV viewer, or Internet
user, would be forced to deal with a communications cartel of a magnitude
of power the world has never seen before.1

In April of last year, an image (or more accurately, a .jpg file of an

image) cryptically titled 1993 vs 2013 appeared on the Pics subpage
of the social news Web site Reddit.2 The image contained two horizontally stacked photographs of carefully arranged technology-based
personal items on an identical background. The top photo, representing
1993, was of several items representative of the tools of the time, such

Assistant Professor, Elon University School of Law. The author acknowledges the
help of Elizabeth Long and Spenser Tatum for outstanding research assistance.
1
Ben H. Bagdikian, Preface, THE MEDIA MONOPOLY xi. (6th ed. 2000).
2
See http://www.reddit.com/r/pics/comments/1cbken/1993 vs 2013/.

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E. ARMIJO

as an Apple Newton MessagePad, JVC Video Camcorder, Apple PowerBook 160, Motorola DynaTAC cell phone, Polaroid OneStep, Sony Sports
Walkman cassette player, pager, and a digital watch,3 each blocky item
representing its own single function, all colored a slightly lighter or
darker shade of grey but for the bright yellow body, cords and headphones of the Sports Walkman. The bottom photo, by contrast, contained a single product, centered alone in the middle of the frame: a
white iPhone 4.
It is by now de rigeur for scholars and journalists to point out that
the digital revolution has eliminated long-standing barriers to the act
of collecting and disseminating news, and relatedly, has fundamentally
altered journalisms business model. Indeed that premise is one major
theme of the pieces appearing in this issue. The ease-of-use and accessibility of high-speed Internet, mobile technology, and social media now
establish the frame within which all of our public policy and academic
debates concerning communications law and policy take place. To some,
these changes lead to the conclusions that the law should consider almost everything news and almost everyone a journalist.4 Others take
an old-wine-in-new-bottles approach, discussing how the salutary functions of the traditional media can carry over into the online space and
vice versa.5 It is undisputable, however, that reporting, particularly of
worldwide breaking news, has profoundly changed, and that this development has expanded the reach of media and communications law well
beyond our traditional outlets and models.
Relatedly, and speaking of barriers crashing down, it is also accepted
as fact that these changes have reoriented the power structures within
both news organizations themselves and the organizations subjected to
the medias oversight. But as the table of contents to this issue shows,
the arrogation of power has gone in the opposite direction than many

Brian Galindo, 1993 Vs. 2013, BUZZFEED (Apr. 15, 2013), http://www.buzzfeed.com/
briangalindo/1993-vs-2013.
4
See, e.g., Nathan Fenessy, Bringing Bloggers into the Journalistic Privilege Fold, 55
CATH. U. L. REV. 1059 (2006); Melissa A. Troiano, The New Journalism? Why Traditional Defamation Laws Should Apply to Internet Blogs, 55 AM. U. L. REV. 1447, 1451
(2006) (arguing for an amendment to the Communications Decency Act that would hold
bloggers to the same standard of liability for third-party postings as traditional media
defendants, since they act in traditional editorial and publisher roles when editing
such postings); Sunny Woan, The Blogosphere: Past, Present, and Future: Preserving the
Unfettered Development of Alternative Journalism, 44 CAL. W. L. REV. 477, 479 (2008)
(arguing that bloggers should be defined as journalists or not based on the function
that the person is performing); Jared Schroeder, Focusing on How Rather Than on
Whom: Constructing a Process-Based Framework for Interpreting the Press Clause in
the Network-Society Era, infra.
5
See, e.g., C.W. ANDERSON, REBUILDING THE NEWS: METROPOLITAN JOURNALISM IN
THE DIGITAL AGE (2013).

LAW, CHANGE AND THE NEW NORMAL

403

once feared. To be sure, commentators have long been concerned with

powers undue influence over journalism and communication policy. But
the loci of many of those concerns, in particular the ability of media
oligopolies to detrimentally shape public debate and policy in the direction their owners and editors favor, now seem almost laughably misplaced.
For example, Ben Bagdikians warnings in the Sixth Edition of his
seminal The Media Monopoly concerning the power of multinational
media conglomerates sound like they come from the voice-over of a
trailer for a 1970s disaster movie: Private industry consolidation over
print and television interests was creating an Orwellian Big Brother,
Incorporated, which would control the very accepted definition of what
is news;6 small, independent voices diminutive sounds tend to be
drowned by the controlled thunder of Corporate Media and its owners, who are the equivalent of a Private Ministry of Information and
Culture;7 Disneys size and all-encompassing market power over youth
culture dilutes influences from family, schooling, and other sources that
are grounded in real-life experience, weakening their ability to guide
growing generations.8 As we now know, though, the AOL-Time Warner
merger represented not the transformative, democracy-threatening,
high-water-mark of consolidated private power over nearly everything
we would see, hear and read online or off but rather a historically bad
deal between two incompatible companies that fell apart under its own
weight.9 And cable television may have extended the news cycle from
the reliable rhythm of the daily newspaper publication schedule to an
always-on, 24/7 time frame, but social media have expanded the range

Bagdikian, supra note 1, at xii-xiii.

Id. at liv.
8
Id. at xx. Despite my dubiousness with respect to this particular claim, I admit
that my 4-year-old-daughter is indeed addicted to princesses and fairies, and she would
watch her Cinderella DVD every night if her parents permitted it.
9
See Tim Arango, How the AOL-Time Warner Merger Went So Wrong, N.Y. TIMES, Jan.
10, 2010, available at http://www.nytimes.com/2010/01/11/business/media/11merger.
html?pagewanted=all& r=0; Laura M. Holson, The Online Generation Courts the Old
Guard, N.Y. TIMES, Jan. 11, 2000, available at http://www.nytimes.com/2000/01/11/
business/media-megadeal-the-deal-the-online-generation-courts-the-old-guard.html.
Cracks in the AOL-Time Warner foundation had begun to show by Bagdikians 2004
revision of The Media Monopoly, but even then the merged company was something to
fear, ominously characterized as the biggest media firm in the world. BEN BAGDIKIAN,
THE NEW MEDIA MONOPOLY 32-33 (revised & updated ed. 2004).
7

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E. ARMIJO

of actors who can contribute to and participate in the cycle, thereby deteriorating traditional medias power over agenda-setting and wisdomhardening.10 It turns out that Goliath gave David no reason to fear, at
least so long as David had Internet access and a Twitter feed.
To be fair to Bagdikian, however, there has been a consolidation of
power in private hands, though not quite the one he predicted. If everyone is now, or at least could now be, a journalist, and the ability to contribute to the supply chain of news includes everyone worldwide with
a connected smartphone,11 it is also true that the same communications
architecture that has removed barriers to compiling and disseminating
news has placed enormous and unchecked authority in the hands of
information communications technology-providing intermediaries that
can and do exercise significant control over what is read, seen, and
heard. ISPs, application companies, and search service providers retain ultimate authority to decide what digital speech is safe or worthy
enough to carry.12 And the Internet has boosted the power and efficiency
of the governments surveillance apparatus such that any presumptions
that speech online is private are being preempted by the states technological ability to monitor, amass and crunch personal data. Based on
what we now know of the surveillance state, the question of whether
the government can collect information shared online is moot; the debate has already turned to setting the proper limits on its use of that
information.13
Accordingly, the process- and power-related debates we are now having about communications law and policy would have been unrecognizable to us twenty years ago. Not many predicted in 1993 that in just
two decades, the functions of a word processor, camcorder, telephone,
camera, music player, pager and watch could all fit within a single,
palm-sized device or especially that the same device could be connected to millions of other devices and distribute text, photographs or

10
See Rasmus Kleis Nielsen & Kim Christian Schroder, The Relative Importance of
Social Media for Accessing, Finding, and Engaging with News, DIGITAL JOURNALISM
1-2 (2014) (referring to studies that suggest a move from a traditional news cycle
dominated by journalists and professional sources to a more complex information cycle
that integrates ordinary people in the ongoing construction and contestation of news),
http://www.tandfonline.com/doi/pdf/10.1080/21670811.2013.872420.
11
ERIC SCHMIDT & JARED COHEN, THE NEW DIGITAL AGE 50 (Paperback ed. 2014).
12
See, e.g., Jeffrey Rosen, The Delete Squad: Google, Twitter, Facebook
and the New Global Battle Over the Future of Free Speech, NEW REPUBLIC, Apr. 29, 2013, available at http://www.newrepublic.com/article/113045/
free-speech-internet-silicon-valley-making-rules.
13
See The Presidents Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World (rel. Dec. 12, 2013), available at http:
//www.whitehouse.gov/sites/default/files/docs/2013-12-12 rg final report.pdf ; Arthur S.
Hayes, The USPS as an ISP: A Remedy for Online Privacy Concerns, infra.

LAW, CHANGE AND THE NEW NORMAL

405

even video in a split second. Prognostications are thus a risky business, but it is the academys role to engage in critical observations, and
to make recommendations for the future based on trends as we view
them. Here are a few of my own.

WHAT ROLES FOR LAW AND POLICY?

It has become increasingly clear that many of the traditional areas of
federal regulatory concern in the communication space such as restrictions over the type and number of traditional media properties an entity
may own in a national or local market, the governments ability to punish broadcast licensees for airing indecent content, or establishing the
rules of interconnection for local and long-distance telephony carriage
are nearly irrelevant to the creation and consumption of media in 2014.
Like our communication itself, public policys trenches for debate have
shifted to the online space, and to issues such as net neutrality and government surveillance of ICT networks, software and devices. However,
even though these issues are national, if not international, in scope and
thus amenable to national, if not international, debate, over the next
twenty years, the most visible effects of communications-related technological change are likely to be be found in two areas that have long
been the province of state tort law: reputation and privacy.
Reputation: A Change in the Defamation Battlefield
This year marks the fiftieth anniversary of 1964s New York Times Co.
v. Sullivan,14 in which the Supreme Court of the United States declared
that public officials could not successfully sue the speakers of allegedly
defamatory statements for libel unless the official could prove, as part of
her prima facie case, that the statement was made with actual malice,
that is, either knowing it was false or with reckless disregard to its
truth.15 It is also true, however, that as we celebrate that anniversary,
libel suits against traditional media companies are at an all-time low.
In 2010, the New York Times assistant general counsel reported that
the number of active domestic libel suits against the Times and its coowned regional papers, including the Boston Globe, was literally zero
a reversal from years past, when the Times Company would have

14

376 U.S. 254 (1964).

Id. at 279-80. The Court later extended the actual malice rule to public figures. See
Gertz v. Robert Welch, Inc., 418 U.S. 341 (1974); Curtis Publg Co. v. Butts, 388 U.S. 130
(1967).
15

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E. ARMIJO

about 10 to 15 cases a year.16 Other print outlets report a similarly

precipitous, though certainly welcome, decrease.17
Some might attribute this development to Sullivan itself; setting the
burden of proof for defamation plaintiffs at actual malice discourages all
but the most meritorious libel cases from being brought. But as noted,
Sullivan will mark its half-century this year, so this explanation cant
account for the recency of the trend. As the Media Law Resource Center
reported in 2012, libel claims involving newspapers dropped by twothirds from 1980 to 2009.18 A more likely explanation is the Internet
itself. The countless number of voices now online might make a potentially defamatory statement by a single one of those voices, including
the mighty New York Times, sting a bit less for the statements subject.
That subject can join the online fray with a voice and rebut any claims
believed to be false, via blog, Facebook or Twitter. And since most of
the traditional medias reach are now through their online presence, online corrections to Web site-published stories make potentially libelous
statements or more benign reporting errors far easier to correct than
those that might appear in print or broadcast versions of those same
stories. Online publishing has moved the traditional medias complaint
and corrections process into near-real-time.
Of course, the Internet has made it easier for prospective plaintiffs
to self-help and prospective defendants to correct before lawsuits are
filed, but it also makes it much easier to defame. The Internets capacity as a space to publish anonymous and pseudonymous speech with
ease has reduced qualms people might otherwise have over attacking
others reputations; chat rooms, comment sections and blog posts lend
themselves to false statements in a way that face-to-face or even traditionally published communication do not. Anonymous, instantaneously
published speech has placed a premium on speed, spontaneity, interactivity, speculation, emotion, provocation and hyperbole, which have
take[n] precedence over all other values, including those adhered to
by the traditional media, such as truth, civility, even-handedness, reliability and accuracy, let alone grammar, spelling, and punctuation.19

16

John Koblin, The End of Libel?, N.Y. OBSERVER, June 9, 2010, available at http:
//observer.com/2010/06/the-end-of-libel/.
17
See id. (discussing Time magazine).
18
Press Release, Media Law Resource Center, Study of Media Trials Analyzes 18 New Cases Tried in 2010 & 2011 (2012), available at http:
//www.medialaw.org/medialaw/images/stories/About MLRC/Press Releases/2012/
MLRC Trials Damages Release 2012.pdf .
19
Lyrissa Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE
L.J. 855, 862-63 (2000). The ability to remain unknown, one commenter has noted,
removes many of the layers of civilized behavior as Internet users realize [or at least
believe] that they can escape responsibility for negligent or abusive postings about other
people. Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges

LAW, CHANGE AND THE NEW NORMAL

407

Additionally, rumor, gossip and shaming have taken on new dimensions as they have moved to the Internet; types of speech that were
once local and fleeting when shared in-person now create a permanent record of peoples past transgressions, regardless in some cases
whether those transgressions actually occurred.20 False information, in
other words, is just as Googlable as true facts.
The rise of legally actionable anonymous online speech has also reshaped traditional confidentiality-based litigation. Lawsuits seeking
to compel journalists to disclose their confidential sources have long
been a part of media law.21 But subpoena actions brought by aggrieved
defamation plaintiffs against Internet Service Providers and Web hosts
to reveal the true identities of John Doe anonymous or pseudonymous
commenter-defendants that have defamed the plaintiffs on the ISPs online message boards or in the Web hosts comments section, have grown
exponentially. Courts faced with these subpoenas have sought to balance two sets of rights: the right of the civil plaintiff to the identity
of his defendant such that the plaintiffs defamation action may proceed, versus the First Amendment-derived right of the commenter or
chat room participant to use the Internet to speak anonymously. As a
California court noted:
The use of a pseudonymous screen name offers a safe outlet for the user
to experiment with novel ideas, express unorthodox political views, or
criticize corporate or individual behavior without fear of intimidation or
reprisal. In addition, by concealing speakers identities, the online forum
allows individuals of any economic, political, or social status to be heard
without suppression or other intervention by the media or more powerful
figures in the field.22

Cyberdefamation is thus a hearty and vigorous strain that has evolved,

or some might say devolved, from old-fashioned, common law libel
and slander. But even though anonymity and pseudonymity in the
online space seem to have granted online speakers (at least in their
own minds) a license to freely defame, they also carry with them a

to the First Amendment in Cyberspace, 104 YALE L.J. 1639, 1642 (1995) (cited in Lidsky,
supra, at notes 127-28).
20
Daniel J. Solove, Speech, Privacy, and Reputation on the Internet, in THE OFFENSIVE
INTERNET: SPEECH, PRIVACY, AND REPUTATION 16 (S. Levemore & M. Nussbaum eds.,
2010). See also Cass Sunstein, Believing False Rumors, in THE OFFENSIVE INTERNET,
supra at 91.
21
See, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972); Lee v. Dept of Justice, 428 F.3d
299 (D.C. Cir. 2005); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir.
2005).
22
Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1162 (2008). See also Dendrite Intl v. John
Doe No. 3, 774 A.2d 756 (N.J. 2001).

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E. ARMIJO

robust set of protections associated with the constitutional right to

publish speech without revealing ones identity.23 For better or worse,
courts have compared the smearing Internet troll to the founding
eras pseudonymous pamphleteer and found them to share much in
common.
So, while there may be far fewer defamation cases against the traditional media, we can be sure that there is more defamation being
published than ever. As the defamatory speech that is the subject of litigation moves online, one approach that courts should follow is to give
searching review of one particular aspect of the plaintiffs prima facie
case of defamation: the context in which the statement is made in order to properly assess whether an alleged statement is false, or rather
unpunishable opinion. Courts examining allegedly defamatory online
speech should closely consider the medium by which the statement is
disseminated when analyzing whether a statement asserts a fact or an
opinion.24 In the case of user review sites such as Yelp, TripAdvisor or
Angies List, the very nature of the forum solicits opinions whether
the commenters would recommend a particular restaurant, hotel, doctor or contractor, for example, based on their own experience.25 Because
users seek out a site like Yelp for the opinions of other users, this function should play an important role in the defamation calculus when
considering the falsity of a statement made on such a site. Similarly,
comments sections of online articles, by their very form and function,
solicit opinions on the individuals and issues discussed in the appended
story. Where the context of the forum dictates that a users post is more
likely than not an opinion, courts should apply a strong presumption in
favor of protecting the speech.26

23

See McIntyre v. Ohio Elections Commn, 514 U.S. 334, 341-42 (1995).
Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451, 460 (Fla. Dist. Ct. App. 1999)
(quoted in Krinsky).
25
Of course, this begs the question of whether a plaintiff should be able to allege that
the anonymous review is in effect a defamatory fiction that is, that the commenter
did not use or visit the plaintiff s business at all and thus the identity of the reviewers
should be revealed so as to confirm that allegation. In such a case, if the plaintiff can
support a claim with evidence demonstrating the reviewers false representation with
respect to having been plaintiff s customer, the court will likely order that the reviewers
identity be revealed. See Yelp v. Hadeed Carpet Cleaning, Inc., 752 S.E.2d 554 (Va. Ct.
App. 2014) (ordering Yelp to turn over IP addresses for seven anonymous authors of
negative reviews of plaintiff s business when plaintiff alleged that the reviews authors
had in fact never used his business at all).
26
See, e.g., Loftus v. Nazari, 2014 WL 1908812, at 2-3 (E.D. Ky. May 13, 2014) (where
doctor alleged that former patient defamed him with posts on opinion Web sites concerning undesirable side effects she was suffering after surgery, [I]t must be taken into
account that the statements by [patient] were posted on opinion websites; therefore,
the natural tendency would be to infer that they are opinion). International digital
publication has raised a whole new set of defamation-related problems; though the
Times Company reported no active domestic lawsuits, a handful were pending abroad,
24

LAW, CHANGE AND THE NEW NORMAL

409

On the other hand, one aspect of analysis regarding whether online

speech constitutes provable fact or unprovable opinion proves too much.
For the aforementioned reasons, online speech spaces lend themselves
to the use of extreme or hyperbolic language. In some cases, however,
courts have pointed to those very attributes to presume, if not conclude,
that an allegedly defamatory statement is opinion rather than fact.
For example, in Obsidian Finance Group & Padrick v. Cox, the United
States Court of Appeals for the Ninth Circuit found that the libel defendants claims, made on his various blogs, that the main plaintiff had
engaged in fraud, corruption and even worse, were unactionable opinions because of their extreme, occasional and somewhat run-on, and
stream-of-consciousness nature.27 One wonders why defamation law
should favor the inarticulate screamer over the reasoned scribe. If the
claim is that the screamers false statement is based on passion and the
scribes is based in objective fact, then it seems that the more horrible
the statement, the more likely it will be unactionable, regardless of its
capacity for reputational harm. And if the response to that point is that
the more horrible the statement, the less likely both the screamer and
the hearer are to actually believe it, then we might ask whether the law
places First Amendment formalism over common sense.
An interesting related development is the decision of some Web sites,
when faced with these issues, to do away with comments sections altogether. As Popular Science recently stated in a letter to its online readership, [A] fractious minority [of trolling commenters] wields enough
power to skew a readers perception of a story, a development that led
the magazine to remove comments sections from the articles it posted to
its site.28 Citing research on the effects of epithet- and insult-laded comments, as well as the politically motivated, decades-long war on [scientific] expertise, the magazine argued that disagreements between
commenters impacted readers perception of science, and thus interfered with the publications mission.29
At first glance, this decision, made by a private Web site, may not
have much to do with law or policy at all. But court interpretations

brought by foreign plaintiffs who claimed to have been defamed by online versions of
Times newspapers. See Koblin, The End of Libel?, supra note 16.
27
740 F.3d 1284, 1293-94 (9th Cir. 2014). See also Unelko Corp. v. Rooney, 912 F.2d
1049, 1053 (9th Cir. 1990).
28
Suzanne LaBarre, Why Were Shutting Off Our Comments, POPULAR SCIENCE, Sept. 24, 2013, available at http://www.popsci.com/science/article/2013-09/
why-were-shutting-our-comments.
29
Id. (citing Dominique Brossard & Dietram Scheufele, This Story Stinks, N.Y.
TIMES, Mar. 2, 2013, available at http://www.nytimes.com/2013/03/03/opinion/sunday/
this-story-stinks.html? r=0); Ashley Anderson, Dominique Brossard & Dietram
Scheufele, et al., The Nasty Effect: Online Incivility and Risk Perceptions of Emerging
Technologies, 19 J. OF COMPUTER-MEDIATED COMM. 373 (2013).

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E. ARMIJO

of the scope of Web site immunity for third-party comments under the
Communications Decency Acts Section 23030 might play a factor in
Web sites decisions with respect to hosting user comments sections on
their Web pages. For example, while soliciting, screening or editing user
comments to promote civility would not result in a loss of immunity,
substantial alterations of user-provided content or neglecting to remove
defamatory user-provided content after promising to do so might.31 Any
adverse speech-related effects of a decision to forego reader comments,
however, are ameliorated by the presence of the alternative fora for
communication of opinion provided by the Internet. If Popular Science
has decided not to host debates about its articles on its own Web site,
there are plenty of other virtual sandboxes for those debaters to play in.
Privacy: Preserving the Boundaries of Reasonable
Expectation in Online Spaces
The long-standing tort of public disclosure of private facts, which permits a plaintiff to seek damages from a defendant who publicizes a true
but private fact about that plaintiff, turns on the concept of reasonable expectation of privacy.32 The reasonable expectation test, imported
from the Fourth Amendment government search context, asks whether
an individual has a reasonable expectation of privacy in the purportedly
private fact.33 If not, the tort cannot provide damages for the facts disclosure. A corollary to the reasonable expectation principle, also Fourth
Amendment-derived, is the Third Party Doctrine; in the online context,
47 U.S.C. 230 (1996) (No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information provided by another
information content provider.).
31
See, e.g., Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (Section 230 immunity not
waived when administrator selected, edited and posted user emails to listserve and
Web site.); Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004)
(Soliciting user content does not waive Section 230 immunity.); Doanto v. Moldow, 865
A.2d 711 (N.J. Super. Ct. 2005) (exercising editorial control over comments section such
as deleting offensive messages and language within messages did not waive Section 230
immunity). But see, e.g., Barnes v. Yahoo, Inc., 570 F.3d 1096 (9th Cir. 2009) (Section
230 did not shield Yahoo!s failure to remove defamatory content after promising to do
so from a promissory estoppel claim.); Fair Housing of Council of San Fernando Valley
v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) (rejecting Section 230 immunity when
Web site created forms for users to provide illegal housing preferences in their online
advertisements).
32
See RESTATEMENT (SECOND) OF TORTS 652D (1977).
33
See Katz v. United States, 389 U.S. 347, 351 (1967). The text of the Restatement formulates the reasonableness question slightly differently, asking whether the disclosure
would be highly offensive to a reasonable person, however, the texts interpretive comment shows that the highly offensive inquiry protects only against disclosures that
are unreasonable . . . to the ordinary reasonable man. See RESTATEMENT (SECOND)
OF TORTS 652D, cmt c.
30

LAW, CHANGE AND THE NEW NORMAL

411

the doctrine has created a significant barrier for plaintiffs seeking to

punish disclosures about them made via social media or other digital
communication. In effect, the doctrine states that when information is
shared with a third party, the sharer cannot reasonably assume the
information would be kept private since the sharer has no control over
what the third party might do with that information.34 Accordingly, any
expectation that the information remain private after the sharing with
the third party is unreasonable. One need not have a law degree to understand how this works (and indeed, my first-year law students, members of the Facebook Generation, understand it exceedingly well): No
one has a reasonable expectation of privacy in anything shared online
for two reasons: (1) it is per se unreasonable to assume that information
shared with even a small, carefully curated group of Facebook friends
or Twitter followers will not be subsequently redistributed without the
sharers consent; and (2) the sharing itself relies upon, indeed requires,
a third party, namely a social media software application.
Courts have been as unsympathetic to claims of privacy over information shared online as 1Ls are. For example, in People v. Harris, the
New York Court of Appeals held that the government could acquire a
criminal defendants Twitter records as part of an investigation, since
the defendant shared that information on Twitter.35 This was so, even
though sometimes information shared online is accessible to a selected
group of recipients but not available for viewing by the general public;36 after all, there is no assurance that a Facebook friend wont share
a post intended only for a select group to the friends own larger, more
undifferentiated, and more accessible network.

34
See Smith v. Maryland, 442 U.S. 735, 744 (1979). See also United States v. Polizzi, 549
F. Supp. 2d 308, 390 (E.D.N.Y. 2008) (No reasonable expectation of privacy in keeping
ones identity secret when IP address is provided to ISP pursuant to receiving Internet
access.).
35
949 N.Y.S.2d 590, 597 (N.Y. Crim. Ct. 2012). See also Fawcett v. Altieri, 960 N.Y.S.2d
592 (N.Y. Sup. Ct. 2013) (Plaintiff s social media postings were relevant to defendants
contest of claimed actual damages resulting from defendants alleged battery.); Romano
v. Steelcase Inc., 907 N.Y.S.2d 650 (Sup. Ct. 2010) (same; The privacy concerns are
far less where the beneficiary herself chose to disclose the information, especially
where Facebook and MySpace terms of service required consent to the sharing of posted
material.).
36
Tara M. Breslawski, Privacy in Social Media: To Tweet or not to Tweet?, 29 TOURO
L. REV. 1283, 1291 (2013)) (quoting Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387,
388 (E.D. Mich. 2012)). See also Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 651 (Sup.
Ct. 2010) (rejecting claim that historical Facebook and MySpace pages were private,
because, [T]he privacy concerns are far less where the beneficiary herself chose to
disclose the information).

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E. ARMIJO

Arguing that the Third Party Doctrine should not apply to some online
communications has been a cottage industry for Internet scholars,37 but
it is difficult to see why these cases are not correctly decided, or that the
law on this issue should change. The reasonable expectation of privacy
test has never concerned itself with the scope of the disclosure to the
third party. It matters not, for example, whether a phone company did in
fact share my phone records with another party without my knowledge
or consent, or whether the phone company is the kind of third party
objectively more likely to so share; it only matters whether it might
even if I believe the confidence [I] placed in the third party [to
not disclose] will not be betrayed.38 If the third party might indeed
disclose, then my expectation in the privacy of those records will not
be reasonable. So, too, with Twitter or Facebook; if I share a tweet or
photo with a small group of followers or friends, nothing keeps those
followers or friends from sharing that tweet or photo with as many
other individuals as they like, either online or off.39
The application of the Third Party Doctrine to online spaces might be
a negative development for all of us as participants in the networked
world, but it is certainly good news for journalists.40 Nearly all of us

37
See, e.g., Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN. L.
REV. 1193, 1198 (1998); Andrew Selbst, Contextual Expectations of Privacy, 35 CARDOZO
L. REV. 643 (2013).
38
United States v. Miller, 425 U.S. 435, 443 (1976); Polizzi, 549 F. Supp. 2d, at 391
(That a person lacks knowledge that the third party would disclose the information . . .
is of limited constitutional significance.) (citing Smith, 442 U.S. at 745).
39
A different result would hold, however, as to the contents of private communications
transferred electronically, namely email, even though the delivery of such communications requires a third party. See Orin Kerr, Applying the Fourth Amendment to the
Internet: A General Approach, 62 STAN. L. REV. 1005, 1029 (2010) (distinguishing between content and non-content when assessing whether an expectation of privacy in
online communications is reasonable).
40
It is certainly true that the institutional press has expressed concern over the development of privacy in the online space in the form of, for example, the European right to
be forgotten. See, e.g., Ordering Google to Forget, N.Y. TIMES, May 13, 2014, available
at http://www.nytimes.com/2014/05/14/opinion/ordering-google-to-forget.html. The
court in the case there, Costeja v. Google (Case C-131/12, May 13, 2014), http://curia.
europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang
=EN&mode=lst&dir=&occ=first&part=1&cid=40344, held that an individual
had the right to demand that a search engine remove from its search results
links to articles that harmed the individuals reputation and concerned truthful
events in the individuals past. Notably, however, the decision expressly exempted
the articles themselves from its holding, on the ground the articles were journalistic in nature. The decisions effects on journalists free speech thus remain
to be seen. See id. (text of opinion). The media have claimed that the decision
harms free expression by interfering with the online accessibility of such truthful
information. See Ordering Google, supra; The Right to Be Forgotten? Forget It,
CHICAGO TRIBUNE, May 26, 2014, available at http://articles.chicagotribune.com/
2014-05-26/opinion/ct-internet-google-forgotten-edit-0526-bd-20140526 1 search-engi
nes-european-court-internet. But no journalists right to speak about public or private

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413

speak via social media on a range of issues, and the Third Party Doctrine treats those statements as freely available for use in subsequent
reporting for example, as several aides to Rhode Island Senator Sheldon Whitehouse were shamed into learning in 2011 after initially claiming that their tweets were off the record.41 And when the traditional
reporter-source relationship no longer limits a journalists interactions
with the principals on the reporters beat, an uncooperative story subject
on a matter of public interest no longer necessarily gets the last word.
Networked newsgathering has expanded the reach of the professional
press as well as the citizen journalist.42
Journalism is already adapting its practices and ethics to the presumed lack of privacy in social media use. Both NPR and the Los Angeles Times recommend that their journalists observe[] online content
without actively participating in it.43 NPRs Ethics Guidelines permit
its reporters to follow or friend a political party or advocacy group to
keep up on what that party or group is doing.44 And the prevalence
of social media use opens up difficult-to-reach news events to reportorial inquiry. For example, if someone is sharing information from an
ongoing situation that could be perceived as hazardous, the Associated
Press now encourages its reporters to monitor their posts and treat
them as news tips as you try to tell the story of whats happening.45
Similarly, AFP urges its journalists to use social networks to engage in
the real time news process, tap into new sources and identify trends.46

CONCLUSION
Information communications technology has irrevocably changed the
newsgathering and distribution business. More news is created, distributed and consumed than ever before, yet, because of that very fact,

figures is in any way circumscribed by the Costeja decision. It remains to be seen

whether the right to be forgotten will in fact deleteriously affect the media or journalists
ability to discuss issues of importance to their readers.
41
See Jeff Sonderman, Senate Staffers Claimed Their Public Tweets Were off
the Record, POYNTER (Sept. 15, 2011), http://www.poynter.org/latest-news/mediawire/
146121/senate-staffers-claimed-their-public-tweets-were-off-the-record/.
42
See Mike Annany, Networked Press Freedom and Social Media: Tracing Historical
and Contemporary Forces in Press-Public Relations, J. OF COMPUTER-MEDIATED COMM.,
at 7 (Mar. 19, 2014), http://onlinelibrary.wiley.com/doi/10.1111/jcc4.12076/pdf .
43
Id. at 10 (quoting NPR and Los Angeles Times social media use policies).
44
Social Media, NPR ETHICS HANDBOOK 59 (2012), http://ethics.npr.org/tag/
social-media/.
45
Associated Press, Social Newsgathering in Sensitive Circumstances (May 2013),
http://www.ap.org/Images/Social-Newsgathering tcm28-12860.pdf .
46
AFP Guidelines for Using Social Media, http://www.afp.com/newsletter/
new-social-media-guidelines.pdf .

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E. ARMIJO

many of the traditional organizations engaged in that work sit at the

precipice of collapse. One underreported reason for this change is that
the communications business is embedded with so many practices
and mores that directly conflict with any notion of profitability and
commerce.
Imagine, for example, that the New York Times sought to require
any blog or Web site that linked to one of its stories to compensate the
paper and to require any reader following such a link to pay for access
to the linked article. In other words, the Times decided it wanted a
true paywall, not the porous, metered one that it currently hosts. This
step is so economically sensible that one must wonder why the Times
and other paywalled newspapers have never attempted it. The Times
might argue that a porous paywall is better for business than a strict
one, because it faces a peculiar bind: Advertisers will pay significantly
less for paywalled ads than for freely accessible ones, and so charging
the online reader for access reduces value for the online advertiser. But
the real reason the Times has not, and likely will not ever, adopt a pure
paywall of the type described here is because of the normative conclusion
that free-riders in the media space are good for society. Of course, this
conclusion was much easier to come to when newspapers were enjoying
profit margins of 20% or more and thus could afford to give their content
away on their Web sites, but it still holds significant sway. Despite
the Great Recession and the collapse of print advertising, traditional
medias attitude toward parasitical uses of their content continues to be
ambivalent to a fault the kind of ambivalence displayed by members
of the Titanics orchestra on the night the ship sank.47
The tension between the information should be free position and the
traditional medias rational business interest thus reveals itself mostly
in market-based decisions. But law has something to say about this tension as well. The information should be free position is manifested not
only in media companies own decisions to permit free access to their
articles, but also in copyright law, which generally finds that hosting hyperlinked articles is probably sufficiently transformative of the original

47

See Jack Kopstein, The Valiant Musicians: Wallace Hartley and the Titanic
Ships Orchestra, WORLDMILITARYBANDS.COM, http://www.worldmilitarybands.com/
the-valiant-musicians/ (as water rushed onboard the Titanic, Wallace Hartley, the onboard bands conductor, [V]ery quickly realized that he and the band must play to calm
the passengers by playing up-tempo ragtime and waltzes. . . . With the end being very
close, Hartley called to his comrades that they may try and save themselves. None chose
to do so and they remained together on the boat deck until the slope of the ship did not
enable them to continue playing.). For a more robust approach to protecting news as
intellectual property, compare VICTORIA SMITH EKSTRAND, NEWS PIRACY AND THE HOT
NEWS DOCTRINE 50-76 (2005), which details the Associated Presss efforts in the early
twentieth century to control the parasitic distribution and appropriation of its news
by competitors.

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415

work to constitute fair use.48 It is notable, however, that the traditional

media seem to have never sought to lobby (at least visibly) for changes
in the Copyright Act that would restrict third-party linking, as well as
other practices that limit the medias control over the distribution of its
content. This, too, is likely attributable to the industrys adherence to
the information is free position, or at least a hesitation on the medias
part to make any type of claim of ownership over news.
So in the end, the most lasting story of communication law and policy in the next twenty years may likely be the changes caused by the
traditional medias refusal to change, either themselves or the laws and
policies that govern them. Does this and the other disruptive developments described here place the communications-derived values that we
all agree are important accountability reporting at the local level,
in-depth coverage and analysis of international news, deep and abiding connections between news organizations and the communities they
cover at risk? Or can the virtual connections provided by the New
Normal supplant and enrich the old-fashioned ones that were limited
by shared time and place? To modify a timeless cliche, only time
informed by the insights expressed in this Issue, by the unpredictable
currents of technological change, by the media profession, academy, and
bar, and by developments impossible to foresee from here will tell.

48

See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).