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Weekly Appellate Report #22

By Brian Cardile | Sep. 23, 2016

Appellate Practice

Sep. 23, 2016

Weekly Appellate Report #22

Attorney Jamie Lee Williams (Electronic Frontier Foundation) advocates for en banc review in a broad computer fraud ruling, Facebook v. Power Ventures; Jeffrey Melching (Rutan & Tucker) chats a state appellate ruling of first impression, considering the value of municipal aesthetics


Today's show considers a pending en banc petition in the Ninth Circuit that stands to redefine a federal criminal statute vital to the digital age, and a recent state appellate ruling that strikes a balance between municipal aesthetics and the need for ever-more-encroaching telecommunication appurtenances.

First Jamie Lee Williams, of the Electronic Frontier Foundation, will visit to chat the recent Ninth Circuit ruling in 'Facebook v. Power Ventures,' a case that examined the federal Computer Fraud and Abuse Act and which Ms. Williams says, stands to criminalize a broad swath of innocuous online activity in that case, a social media aggregator, Power Ventures, pulled certain information off of Facebook's site with the permission of Facebook users but without the permission of Facebook itself. After Power ignored a cease and desist letter from the social media giant, Facebook sued, and the Ninth Circuit panel determined Power had violated the federal statute. Though a battle between major social media competitors might seem a rare enough occurrence, Ms. Williams says that this ruling could make federal crimes out of everyday occurrences, like a husband letting his wife handle some of his online banking, or a son logging into his mother's Netflix account. Ms. Williams helped author an amicus brief petitioning for en banc review with her organization, the Electronic Frontier Foundation, along with the ACLU. That petition awaits a determination.

Then, Jeffrey Melching, of Rutan & Tucker, will visit to discuss last week's First Appellate District ruling in T-Mobile West v. City and County of San Francisco, which considered, as an issue of first impression, whether a municipal government could rightly regulate certain telecommunication equipment placed on public rights of way purely on the basis of aesthetics. T-Mobile and other telecoms argued that state statutes preempted the local ordinance at issue here, and required San Francisco to allow the appurtenances so long as they did not physically obstruct the flow of pedestrians and cars through the rights of way. But, reading those state statutes broadly, looking to a Ninth Circuit ruling for persuasive authority, and determining that rights of way have meaning beyond simply their ability to convey traffic, the unanimous First District panel held that a locality may proscribe unsightly equipment that would offend the aesthetic sensibilities of its citizens. Mr. Melching co-authored an amicus brief for the prevailing side, and will discuss this ruling's impact on the future battles between cities and telecom providers.

Don't forget CLE credit is available for listeners; find the link below to take a short true/false test based on the episode, and earn your credit. <!-- Weekly Appellate Report Podcast -->


Brian Cardile

Rulings Editor, Podcast Host, 9th U.S. Circuit Court of Appeals reporter

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