Despite advances in technology and the myriad of new platforms on which we can defame someone, traditional principles of personal jurisdiction still apply. This past January, a California appellate court reversed the trial court’s finding of personal jurisdiction and found that posting defamatory statements about a person on Facebook, while knowing the person resides in the forum state, is insufficient in itself to create the necessary minimum contacts. Burdick . Superior Court of Orange Cty., Case No. G049107 (Jan. 14, 2015). Not a surprising result in light of last year’s unanimous decision by the U.S. Supreme Court in Walden v. Fiore, which found that the plaintiffs could not exercise personal jurisdiction over the defendant “because a plaintiff’s contacts with the forum State cannot be ‘decisive in determining whether defendants’ due process rights are violated.’” (Emphasis added.)
In Burdick, the plaintiffs, California residents, filed a lawsuit against Douglas Burdick, among others, for defamation and other intentional torts. Burdick is an Illinois resident who posted defamatory statements about the plaintiffs on his personal Facebook page. Burdick filed a motion to quash service of summons based on lack of personal jurisdiction. The trial court denied Burdick’s motion; Burdick filed a petition for peremptory writ of mandate to challenge the trial court’s order. Following Walden v. Fiore, the California appellate court reversed the trial court’s decision and remanded the case for discovery on the limited issue of personal jurisdiction.
Earlier this month, a pair of bipartisan bills were introduced in Congress to provide greater access to federal agency records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Both the FOIA Improvement Act (S. 337) and the FOIA Oversight and Implementation Act of 2015 (H.R. 653) would (1) codify the so-called “presumption of openness” policy of the Obama Administration, (2) limit the applicability of the FOIA exemption that protects certain privileged records – including records that reflect an agency’s deliberative process – from disclosure, (3) promote electronic access to agency records, (4) limit the use of search and duplication fees, and (5) strengthen the authority of the Office of Government Information Services (“OGIS”) and each agency’s Chief FOIA Officer. If enacted, these measures would constitute the most significant FOIA reforms in decades.
Let’s look at what the bills actually propose. The “presumption of openness” is somewhat of a misnomer, since FOIA already requires federal agencies to “disclose agency records to any person under § 552(a), unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).” U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 150-151, 109 S. Ct. 2841 (1989). Under the existing statute, the “strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.” U.S. Dept. of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541 (1991). Instead of altering that presumption, the “presumption of openness” would narrow the applicability of FOIA’s exemptions by allowing agencies to withhold information under an exemption only when (1) an agency reasonably foresees that disclosure would harm an interest protected by an exemption, or (2) disclosure is otherwise prohibited by law. In other words, an agency would be unable to rely solely on the fact that a record meets the definition of an exemption to withhold a record; the agency also would need to assess any harm caused by disclosure. Whether this reform would actually decrease the use of FOIA exemptions is far from certain. Although the Obama Administration voluntarily adopted the “presumption of openness” in 2009, it substantially increased the government’s reliance on FOIA exemptions at the same time.
Last week, indeed Friday the 13th, President Obama convened a “Cyber Summit” of business, technology and government leaders to address mounting digital security concerns. While data breaches, hackers and national security interests were top-of-mind for the White House and many in attendance at the Stanford University conclave, Apple CEO Tim Cook took the occasion to reinforce his view (and Apple’s) that security at the expense of privacy is an unacceptable tradeoff: “So much of our information now is digital: photos, medical information, financial transactions, our most private conversations. It comes with great benefits; it makes our lives better, easier and healthier.” Cook further stated, importantly:
“People have trusted us [Apple, and other tech giants, presumably] with their most personal and private information and we must give them the best technology we can to secure it. . . . Sacrificing our right to privacy can have dire consequences. We live in a world where people are not treated equally. There are people who don’t feel free to practice their religion, express their opinion, to love who they choose.”
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