Catch the Tiger by the Tail: Counseling the Burgeoning Government Use of Internet Media
The phenomenon of Internet media has grown exponentially over the past decade, and local governments are beginning to take advantage of the benefits of social networking. Internet media, as the term is used in this article, consists of Web sites operated by governmental entities or elected officials. This definition includes public Web sites, social networking Web sites initiated by agencies of a public body or the public body itself, such as Facebook, Twitter, and YouTube; and Weblogs (more commonly known as blogs) maintained by the public body or any of its agencies. Through Internet media, local governments and their agencies are able to advertise, market, provide notice to constituents, and provide information to residents and nonresidents worldwide. Elected officials are also employing these new media as a way to interact more directly with the public and promote their individual political positions. Overall, both elected and governmental officials are outpacing legislative ability to create standards and protections for use of these new forms of communication, making it easy for users of this technology to inadvertently create liability for themselves and their agencies. The power of this technology assures that liability and compliance concerns will need to be addressed by government attorneys now and in the foreseeable future. As such, this is the time to begin understanding the unique legal issues relating to social networking through Internet media.
Liability Protection
The federal government was proactive in predicting the meteoric development of Internet media and the potential for liability issues to arise through the use, both private and public, of this vehicle. As such, it enacted two primary provisions to address these concerns: 1) 17 U.S.C. §512 and 2) 47 U.S.C. §230.
Digital Millennium Copyright Act
In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA)1 in an effort to protect Internet service providers (ISP) from being held liable for the actions of their users. The service provider designation in the act applies to both primary and secondary providers so long as the ISP is not responsible for the posting of infringing material. A primary provider is an ISP that creates a Web site that interacts with the public and allows public comment or posting, whereas secondary providers use outside Web providers, such as Facebook, YouTube, or Twitter, in order to network.2 The Digital Millennium Copyright Act (DMCA) protects both categories of provider when the potentially infringing content is posted by a user without modification of the content by the ISP. The intent is to allow providers protection from the misdeeds of others in order to foster the free and open exchange of information on the Internet. Therefore, the DMCA fairly apportions blame to the person or entity that is actually responsible for infringing on the copyright through an Internet posting. Strict compliance with the terms of §512 is required in order to retain the protections of the act.
Title 17 U.S.C. §512(a) limits the liability of service providers from copyright infringement challenges based on the provider’s transmitting, routing, or providing connections for material through its system or network, but only if the transmission was initiated by a content user and automatically transmitted to the Web without selection of recipients of the material, without making a copy that is retained, and without modification of the material.3 What this means in the real world is that where a governmental body operates an Internet media site that allows users to view and post comments, it will not be found liable for the content provided by a user, so long as transmission of the content is automatically released by the provider’s computer system. This will afford protection in almost all social networking circumstances since the purpose of these applications is to be open and interactive with outside users. Provider computer systems automatically release content consistent with the legislative intent of allowing open and free discourse through the Internet. Alternately, an ISP may block responses and postings by outside users, but this option is inconsistent with the reason for social networking and, though it may cure potential copyright claims, it is not consistent with the desires of local governments to create open and robust social networking.
Further subsections of §512 expand Internet media protections,4 but the exemption does not apply where the service provider has specific knowledge that certain content on its site infringes the copyright of another and takes no action to remove this material.5 Consistent with this latter restriction, there is no liability to an ISP for removing user content if that action is taken in the good faith belief that the content violates copyright. On the other hand, if the Web content is provided by a subscriber, the ISP must take the extra step of providing notice of the removal.6 Subscribers must also be informed of the ISP’s policy prohibiting repeat infringers.7 Subscribers receive extra protection because they are essentially secondary providers and may not be directly responsible for postings made by their users which affect the primary provider. Finally, an ISP must maintain a designated agent to receive claims of infringement,8 which can be satisfied by including basic information of a contact person on the Web site.
To protect providers from potential liability for removal of content, as directed above, any misrepresentation that material is copyright protected when it is not violates the act and subjects the violator to damages, costs, and attorneys’ fees.9 Assertion of this provision is similar to frivolous lawsuit prohibitions.
The actual application of the act is currently under review by the courts, but some basic outlines and standards have been set. For example, in Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004), the court determined that an ISP would receive copyright protection under §512 as long as it complied with the requirements of subsection (i). In order to satisfy this requirement, the ISP needed to have a policy in place to address copyright violation claims. The defendant in Corbis attempted to comply with this mandate through use of a participation agreement setting forth guidelines for use of the site and prohibiting material from being posted that the user knew to be in violation of copyright law. Plaintiff claimed that the basic language provided by the defendant, Amazon, was vague. However, the court disagreed, holding that even vague language was sufficient to satisfy the statutory standard, as Congress was not specific in drafting the provision and, as such, intended for service providers to have some measure of leeway in protecting themselves through the exemption.10 For this article’s purposes, this means that so long as a government ISP provides language similar to Amazon’s participation agreement and obtains acknowledgment from the user forbidding the downloading of copyright protected material, the §512 protections will remain in place.11 Based on this interpretation, a disclaimer including the requirements set forth in subsections (c)(2) and (i) of the act, should be sufficient to satisfy the demands of §512.
The courts have also addressed the question of how a complaint for copyright infringement is raised. Subsection (c)(3) of §512 provides two basic requirements: 1) notice to the ISP of the copyrighted work that has been infringed and is currently being displayed on the provider’s Web site; 2) and a good faith belief that the display constitutes an infringement. The notice requirement is straightforward but very specific. Notice will be satisfied only upon sufficient information being provided the ISP to identify the complainant and material allegedly being infringed. Failure of a complaint to strictly comply with these requirements will allow an ISP to ignore the complaint.12 The good faith element of (c)(3) has been interpreted to apply a subjective standard based on the complainant’s belief that the displayed material infringes on his or her copyright,13 but the complainant must do more than just identify the allegedly infringing material.14 After receipt of the good faith complaint, the provider must move to terminate and remove the allegedly infringing material. Prompt removal will retain immunity,15 even if it is later determined that the removal was in error. As long as the provider informs the subscriber whose material was removed, there will be no liability to the ISP.16
Section 512 provides full immunity for local government ISPs, but strict compliance with its rules is required. To retain these protections, a local government must create written policy statements consistent with §512(c)(2), (g)(2) and (3), and (i). It must also include a disclaimer section on the Web site that at least recognizes the ISP’s compliance with §512 and requires the user or subscriber to acknowledge its awareness and agreed compliance. Finally, members of the public body designated to manage the Web site must be trained how to respond to complaints in compliance with the act. Taking these three steps will assure that the liability protections of §512 are retained.
The Communications Decency Act
In the landmark decision, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the U.S. Supreme Court held that portions of the Communications Decency Act (CDA), 47 U.S.C. §§223(a) and (d), violated the First Amendment right to free speech. However, the lesser known 47 U.S.C. §230, which provides general liability protection for service providers, was not challenged, and it remains in effect today. Section 230(c)(1), better known as the “Good Samaritan Law,” provides immunity for ISPs publishing material on the Web.17 The Good Samaritan provision exempts service providers from liability for information posted on its site by users or for any action taken in good faith to restrict access to obscene, lewd, or otherwise objectionable postings.18 This exemption extends to preempt all state and local laws that may be in conflict with the act.19 Excluded from protection, though, are challenges based on intellectual property rights.
The CDA distinguishes between “interactive computer services,” which are ISPs that allow access by multiple users, and “information content providers,” which are ISPs that retain responsibility for the creation or development of information provided through the Internet. The former receives the exemption because it lacks the necessary control element, while the latter is unprotected. Local government sites can fall under either category depending on their level of direct control over content posted on their site. Therefore, this is the first issue that needs to be addressed when reviewing a social networking site.
In Doe v. Sexsearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007), an Internet user sued an Internet dating service after he was introduced to and had sex with an underage partner resulting in criminal proceedings against him. The plaintiff’s challenge on several tort and contract grounds was based on the fact that Sexsearch.com warranted that the participants on the Web site are all 18 years or older.20 In its analysis, the court noted that a Web site such as Sexsearch.com may simultaneously be both an interactive computer service and an information content provider. The critical issue in making this determination is whether the site “acted as an information content provider with respect to the information that [plaintiff] claim[s] is false.”21 Based on the facts before it, the court found the §230 exemption applied because even though Sexsearch.com reserved the right to modify the content of profiles on its site, plaintiff did not allege that it specifically modified the profile at issue and, therefore, the control element was missing. This distinction allowed the site to retain its designation as an interactive computer service.
The next issue courts examine is whether an ISP operates as only a publisher or speaker, because the exemption applies only to those categories. Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), involved a situation where an estranged boyfriend posted nude pictures of his ex-girlfriend on the Yahoo membership directory. The plaintiff followed Yahoo’s procedure in attempting to have the pictures removed, but over a period of the next six months she was unsuccessful, and the pictures remained, along with personal information, which allowed viewing strangers to contact her.22 During this six-month period, the plaintiff did receive assurance from an employee of the company that the post would be removed, but that action was never taken. Barnes filed a complaint based in two state tort law theories of negligent undertaking and breach of contract. Yahoo responded with motions to dismiss raising its immunity claim under §230.
The Ninth Circuit, in reviewing the matter, focused on the question of when a plaintiff’s theory of liability would treat an ISP as a publisher or speaker.23 Examining the definition of the term “publisher,” the court determined that all acts of removing content from the site were consistent with that general definition, therefore, §230 immunity applied.24 Conversely, the court found that Yahoo may not receive immunity under Barnes’ breach of contract theory based on the failure of the Yahoo employee to follow through on a promise to remove the offending material, as this promise was not consistent with the act of publishing or speaking.25 As the issue was not fully considered by the district court, the Ninth Circuit made no ruling except to remand. This case provides an object lesson, though, for practitioners in warning clients not to correspond directly with users or other third parties regarding actions that will be undertaken by the government ISP on their behalf, else they may be deemed to be acting outside of their role as a publisher or speaker and not receive the protections of §230.
The rule to be gleaned from this immunity statute and case law is to retain the limited role of a “publisher of an interactive computer service” status. Current technology allows for a service provider to maintain an arm’s length approach to the day-to-day operation of Internet media, thereby supporting application of immunity as the control over content element is missing. Simultaneously, the provider must comply with the removal provisions of the act in order to retain the “publisher” role. Creating policy in compliance with these limits will assure that the protections of §230 remain in place.
Compliance with State and Federal Law
Though the realm of Internet media is evolving at light speed, it remains tethered to statutory laws that have been around for decades. For the government attorney, this adds an extra layer of rules that must be complied with in order to adequately represent your client. Be forewarned, though, that state courts have yet to fully engage on subjects specific to local government requirements and, therefore, at times there is a need to extrapolate as to the application of state law to Internet social networking.
Invasion of Privacy
Florida law protects an individual’s right to privacy under both Fla. Const.art I, §23 and F.S. §540.08. The Florida Supreme Court includes four distinct interests to be protected in the invasion of privacy tort: appropriation, intrusion, public disclosure of private facts, and false light in the public eye.26 These protected areas create a potential for ISP liability because §230(e)(2) of the CDA provides an exception to immunity for laws protecting intellectual property rights. The 11th Circuit Court of Appeals dealt with this question recently in Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006).
Almeida involved a challenge by a woman who was photographed when she was a minor, with the consent of her mother, for an art exhibit. Photos from this exhibit were later published in an illicit book which in a second printing found itself being sold on the Amazon Web site. The plaintiff’s attorney contacted Amazon demanding removal of the book and damages. Amazon responded by immediately removing the offensive material. At the district court level, Amazon successfully obtained dismissal based on the §230 exemption, but the appeals court did not subscribe to this analysis. Addressing the right of privacy, the court explained that the §230(e)(2) intellectual property law exception might annul the exemption and, therefore, focused on the nature of §540.08.27
After review, the court held that Amazon was not liable to Almeida because it did not use her image for trade, commercial, or advertising purposes as required by the statute. This is a critical distinction that must be carefully protected. Government generally will not be seen as operating for commercial or trade purpose. This basic inference should weigh heavily in favor of public bodies when defending against a §540.08 claim. Advertising, on the other hand, is more generic. Governmental bodies must carefully assure that self-promotion does not inadvertently use an unauthorized image to advertise on their own behalf. Strict policies limiting the images posted by a government ISP for this purpose should be created. Only those images that have been previously approved by designated members of the government body should be used by the provider to protect this interest. A proper policy will protect the government ISP even where a user posts an image that may be subject to privacy rights protection because, as the Almeida court noted, Florida state courts interpret §540.08 to require that the unauthorized use of an image “directly promote” the provider.28 Only where the government service provider appropriates the use of a person’s image for its own promotion will the mandates of §540.08 apply. Therefore, in order to steer clear of any invasion of privacy violation, governmental bodies should create a policy to use only approved images and, upon receiving notice of an unauthorized use, immediately remove the subject material. Section 230 of the CDA will protect removal of the posted material, and §540.08 will validate that the images were not misused.
Florida Government in the Sunshine
The Florida Sunshine laws, F.S. §§199 and 286, were created to ensure that citizens of Florida have access to government meetings and records. At the time of their creation, no specific consideration was made as to the effects of social networking Web sites and related interactive media. To date, little has been amended to address the unique aspects of complying with these rules in an Internet age, though the attorney general has provided some interpretations of how the Sunshine Laws apply in this context. These matters also affect public sector attorneys’ elected official clients more directly, which, of course, requires a different calculation as to the appropriate advice when compared to general local government-specific advice.
The first opinion regards the effect of a city council member serving as a private Web master.29 This scenario raises public meeting concerns as comments made by the council member via the Web site, if found to violate these laws, could void the action taken by the larger council, or at least prohibit the member from participation in the discussion and any vote on affected matters coming before the council. Strictly adhering to the mandates of §286, the attorney general explained that regarding e-mails, so long as the information provided did not result in the exchange of comments between council members, no public meeting would result. Posting positions on a blog would undergo the same consideration.
Conversely, regarding the public records status of these missives, the attorney general opined that the council member’s publicly posted comments relating to city business would be public records. Importantly, by creating this public record, the council member becomes responsible for responding to public records requests and retaining the record. This interpretation applies even when the e-mail or blog is undertaken privately. In coming to this determination, the attorney general relied on two cases: Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), for the proposition that the duty of disclosure is placed on the person who has custody of the public record; and Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998), explaining that to have custody one must have supervision and control over the document.30
The attorney general, in an informal opinion dated June 2, 2009, refused to consider whether text messages sent or received by an elected official during a public meeting are public records. The attorney general did not issue a formal opinion, but did cite to the language of the statute that designates all records connected to official government business as subject to §119. This focus suggests that the nature of the text message will determine its status as a public record. The medium used to transmit at this point seems almost irrelevant. Indeed, as to the initial factor for determining the status of a potential public record, the specific language of §119 provides that, “all…material, regardless of the physical form…or means of transmission,” can be considered a public record. This seems to be a direct mandate and should be expressed to elected official clients as such.
Regarding social networking sites, the attorney general has opined in a question from the City of Coral Springs as to the effect of a city sponsored Facebook page.31 In this opinion, the attorney general explained that because the creation of a city Facebook page was for a public purpose and in connection with the transaction of official business of the city, information on the page was subject to §119. Those persons contacting the Web site would also be subject to the public records law if their contact was related to city business. This is a case-by-case decision that must be made based on the nature of the contact. It is a critical determination because private contacts remain private and not subject to the public records law even though they are on the city computer system.32 Similarly, any communication by city officials on the Facebook page would be subject to §286. As such, any response by a commission member to the statement of another would result in an illegal public meeting and subject the responding party or parties to potential liability.
Finally, the attorney general clarified that the Fla. Const. art I, §23 right of privacy would not be breached when the city is required to comply with a public records request that includes information from a nongovernmental official. Effectively, the attorney general interprets that public records law prevails over state constitutional privacy rights in this context.33
The overall direction regarding interpreting the application of the Sunshine Laws to new Internet media suggests that electronic communications will be treated identically to their old-fashioned hard copy brothers. Therefore, both public employees and elected officials must be aware that written content created in any form will be subject to review under a traditional Sunshine Law framework. This raises the potential for inadvertently creating public records which must be made available to the public consistent with the requirements of §119. Similarly, elected officials must be wary of the contacts they make when using this new medium. A careless response or comment may result in a public meeting which has not complied with the necessary requirements of §286, thereby making any action taken on the matter void ab initio.34 Advising government clients of these risks and establishing policies to protect against breaches will go a long way toward assuring compliance with the Sunshine Laws.
Elected Official Use
Fla. Const. art. VII, §10 prohibits the state, counties, municipalities, or any agency thereof from using, giving, or lending its taxing power or credit to aid any private interest or individual. The purpose of this constitutional provision is “to protect public funds and resources from being exploited by assisting or promoting private ventures when the public would be at most only incidentally benefited.”35 Similarly, SB 216, codified at F.S. §106.113 (2009), prohibits local government from expending public funds for political advertisements or electioneering communications. The nature of Internet social networking puts these provisions in a distinct new view.
Most Internet networking created by elected officials is in some way intended to advance the private interests of the official in retaining his or her current position or for obtaining greater support at the polls. In a vacuum, these interests are not in conflict with any requirements of law, but potential for conflict arises in an Internet networking context. Local government Web sites require public funds to be maintained. Therefore, any elected official desiring to link his or her Web site to the site of any public entity could potentially be in violation of Fla. Const. art. VII, §10 or F.S. §106.113 (2009), as arguably the elected official would be exploiting public funds for his or her own private benefit. Particularly in an election year where campaign material and messages will undoubtedly be promoted partially through networking sites, the risk for inadvertently violating these provisions is high.
Federal Requirements
The Stored Communications Act (SCA), 18 U.S.C. §2701, prohibits a party from intentionally accessing an electronic communication service and then obtaining or altering communications found therein without authorization. In the hard copy world, this rule is relatively obvious — one is prohibited from accessing a person’s file without authorization — but in the Internet world, where there is no physical lock on the file drawer, the potential for unauthorized access increases. For example, in Van Alstyne v. Electronic Scriptorium, Ltd., 560 F.3d 199 (4th Cir. 2009), the Fourth Circuit reviewed a jury verdict for statutory and punitive damages against an employer found liable for accessing the personal e-mail account of a former employee, even though the account was on the company’s computer system. Because the account originated from an outside service, accessing it from the home site or any other computer was in violation of the act and subjected the employer to a minimum $1,000 fine.36
The e-mails at issue in Van Alstyne were held in an electronic communications service, which is a service providing users the ability to send or receive electronic communications.37 As such, Yahoo, America Online, and other personal e-mail services are protected from outside access. Conversely, internal services of an employer may not be subject to this rule as they are not electronic communications services per the SCA. This distinction allows government employers to access their internal systems without fear of reprisal, but this action should be undertaken carefully and consistent with the internal rules of the governmental entity.
The final holding of the Van Alstyne court is instructive, as it interpreted the SCA to require a plaintiff to prove actual damages in order to receive the statutory minimum damages award. On the other hand, punitive damages and attorneys’ fees were held to be available to a plaintiff without proof of actual damages if the violation of the act is willful or intentional. As such, an Internet media policy must make employees aware of the potential liability created through the SCA under the above scenario.
Local governments are also required to comply with the Americans with Disabilities Act (ADA), and if the government entity receives federal funds, §508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794(d). These mandates can be achieved by providing qualified individuals with disabilities equal access to programs, services, or activities via the Internet Web site. The only exception to this requirement allows noncompliance if compliance would fundamentally alter the nature of the provider’s programs, services, or activities or would impose an undue burden. Alternatively, the government provider may employ an alternative process for providing information to subject individuals regarding government programs or services, such as a staffed telephone information line. Unfortunately, these alternatives will not provide an equal degree of access in terms of hours of operation and the range of options and programs available as compared to Web site access and, therefore, their use should be limited and supported by the hardship standard referred to above.
In order to come into full compliance with these rules, most attorneys will need the assistance of their client’s Web developer or other information technology specialist. Providing alt tabs, long descriptions and captions, as well as posting alternate options for obtaining information posted on the Web site will go a long way toward compliance, as will a policy acknowledging that the site will be accessible. The U.S. Department of Justice (DOJ) provides several Web site links to assist local specialists with the technical aspects of complying with the ADA rules. 38 Following the directions provided by the DOJ in conjunction with a qualified technical expert should be sufficient to protect government clients from liability for noncompliance.
Conclusion
The new Internet media will be with us for the foreseeable future, and governmental entities will rightly desire to take advantage of the benefits inherent in the varied structures that are being created. Thus, now is the time to establish policies and procedures for governmental clients in order to ensure, to the best extent possible, that those individuals dealing with these media, either personally or on behalf of the government, are aware of their responsibilities and the potential liabilities that may arise from their acts. This is also the time to become more comfortable with the rights and protections that have been enacted to allow the free and open flow of information through the various media. Understanding the problems and protections that are implicated in this arena is the first step toward providing competent advice, but the public sector practitioner must remain engaged as the technology and cultural prominence of these media are continually advancing. Therefore, be aware and ready to adapt.
1 Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2877 (1998).
2 17 U.S.C. §512(k)(1).
3 17 U.S.C. §512(a) (2009); see Parker v. Google, 422 F. Supp. 2d 492, 497 (E.D. Pa. 2006) (noting that where an ISP automatically and temporarily stores data without human intervention so that the system can operate — the necessary element of volition is missing for a copyright infringement claim).
4 17 U.S.C §512(b)-(e) (2009) (providing protection for system caching, storage of content, linking, and acts of university professors or graduate teaching assistants, respectively).
5 17 U.S.C. §512(c)(1).
6 17 U.S.C. §512(g).
7 17 U.S.C §512(i).
8 17 U.S.C. §512(c)(2).
9 17 U.S.C. §512(f), see Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004) (holding that plaintiff violated DMCA misrepresentation provision by attempting to shield noncopyright material from being posted on Web site through copyright claim).
10 Corbis, 351 F. Supp. 2d at 1100-01.
11 Id.; see Ellison v. Robertson, 357 F.3d 1072, 1080 (9th Cir. 2004) (The Ninth Circuit held that the DMCA’s infringement policy requirement has three prongs requiring a service provider to 1) adopt a policy that provides for the termination of service access for repeat copyright infringers in appropriate circumstances; 2) inform users of the service policy; and 3) implement the policy in a reasonable manner.).
12 Recording Industry Ass’n of America, Inc. v. Verizon Internet Services, Inc. 351 F.3d. 1229, 1236 (D.C. Cir. 2003); Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1112 (9th Cir. 2007).
13 See Rossi v. Motion Picture Ass’n of America, Inc., 391 F.3d 1000, 1004 (9th Cir. 2004).
14 See Lenz v.Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008) (noting that copyright owner is required to consider any fair use doctrine defenses prior to issuing DMCA notice).
15 Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1150 (N.D. Cal. 2008) (company policy to remove content within days of receiving DMCA complaint protected it from liability for publishing copyrighted material).
16 17 U.S.C. §512(g).
17 Until recently, immunity was thought to be limited to torts, specifically defamation and libel, but the Ninth Circuit in Fair Housing Council of San Fernando Valley v. Roommates.com, 489 F.3d 921 (9th Cir. 2007), aff’d en banc, 524 F.3d 1157 (9th Cir. 2008), in closely examining the language of the statute determined that immunity was absolute.
18 47 U.S.C. §230(c)(1)-(2).
19 47 U.S.C. §230(e)(3).
20 See Doe, 502 F. Supp. 2d at 723-24 (plaintiff alleged 14 claims in both tort and contract).
21 Id. at 725, quoting Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257 (N.D. Cal. 2006).
22 Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).
23 Id. at 1102-03.
24 Id. at 1103. (“[T]he duty that Barnes claims Yahoo violated derives from Yahoo’s conduct as a publisher.”).
25 Id. at 1106, et seq.
26 Allstate Insurance Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003).
27 Almeida, 456 F.3d at 1324.
28 Id. at 1325, citing Tyne v. Time Warner Entm’t Co. L.P., 901 So. 2d 802, 808 (Fla. 2005); Loft v. Fuller, 408 So. 2d 619, 622-23 (Fla. 4th D.C.A. 1981).
29 AGO 2008-07, Sunshine and Public Records Laws, Private Web site (February 26, 2008), http://www.myfloridalegal.com/ago.nsf/Opinions/B4D1320C99E9E532852573FB00726034.
30 Mintus, 711 So. 2d at 1361.
31 AGO 2009-19, Records, Municipal Facebook Page (April 23, 2009), http://www.myfloridalegal.com/ago.nsf/Opinions/25F
14F90483F3901852575A2004E46CB.
32 See State v. City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003) (The court held that private e-mails on the City of Clearwater’s computer system did not result in the creation of a public record.).
33 Michel v. Douglas, 464 So. 2d 545 (Fla. 1985).
34 Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974).
35 See AGO 84-103, citing Bannon v. Port of Palm Beach District, 246 So. 2d 737, 741 (Fla. 1971). Cf., Markham v. State Department of Revenue, 298 So. 2d 210 (Fla. 1st D.C.A. 1974); State v. Town of North Miami, 59 So. 2d 779 (Fla. 1952); Bailey v. City of Tampa, 111 So. 119 (Fla. 1926).
36 18 U.S.C. §2707.
37 U.S. v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003).
38 See U.S. Department of Justice, Accessibility of State and Local Government Websites to People with Disabilities, http://www.ada.gov/websites2.htm. This link will provide local government technology specialists with the information they need in order to alter the government Web sites as necessary to comply with the ADA.
Carl E. Brody, Jr., is a senior assistant county attorney with the Pinellas County Attorney’s Office, where he focuses his practice in First Amendment and communications law.
This article is submitted on behalf of the City, County and Local Government Law Section, James L. Bennett, chair, and Jewel W. Cole, editor.
