Supreme Court Leaves Telcom Cos. Shield in Place

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The United States Supreme Court this week declined to hear a challenge by the ACLU and the Electronic Frontier Foundation to legislation that provides legal immunity to telecommunications companies that assist the National Security Agency in monitoring citizens' email and telephone communications.

The Associated Press reported that the High Court left in place a unanimous ruling by a three-judge panel of the United States Court of Appeals for the Ninth Circuit on December 29, 2011, that upheld a lower court ruling that the 2008 surveillance rules enacted by Congress were constitutionally permissible.

The rules, which allegedly enabled the intelligence community to engage in warrantless monitoring of Americans' communications, were targeted by the ACLU and EFF in lawsuits against various telecommunications entities, including Sprint Nextel Corp. and Verizon Communications, Inc. that claimed violation of customers' privacy.

Coming to Reality TV: Supreme Court Arguments?

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The U.S. Senate Judiciary Committee has forwarded three bills for consideration by the full Senate, including one that would permit televising U.S. Supreme Court oral arguments.

The Sunshine in  the Courtroom Act, sponsored by Sen. Charles Grassley (R-Iowa), authorizes federal chief district and appellate court judges to permit cameras to televise courtroom proceedings. The measure invites the Judicial Conference to develop guidelines for broadcasting courtroom goings-on, along with steps to be taken to shield crime victims and undercover law enforcement agents.

The Senate Judiciary Committee also passed S.B. 446, concerning electronic media access to Supreme Court hearings, that provides: "The Supreme Court shall permit television coverage of all open sessions of the court, unless the court decides by a vote of the majority of justices that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of  the parties before the court." Sen. Arlen Specter (D.-Pa.) introduced the bill.

The Committee also passed a resolution by a 13-6 vote, S. Res. 339, that expresses the sentiment that the Supreme Court should permit live tv access to open sessions. The "sense of the Senate" resolution is nonbinding.  H.R. 429, the companion bill to S.B. 446, was introduced in January 2009, to the House of Representatives, but is still languishing in the House Judiciary Committee.

Given the Separation of Powers doctrine, it's unsettled whether the Legislative Branch can force the Supreme Court and the rest of the judiciary to broadcast their proceedings.

Viewers may have to wait awhile to watch: "So You Think You Can Judge?"

UPDATE: Supreme Court Extends Stay Blocking Videocast of Prop 8 Trial

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If you want to view the constitutional challenge to Proposition 8 banning gay marriage (Perry v. Schwarzenegger, Case No. 3:09-cv-02292) unfolding in a California courtroom since Monday, you better hurry up and book a flight to San Francisco, because it's not playing on YouTube.

The U.S. Supreme Court yesterday voted 5-4 to extend the stay of U.S. District Court Judge Vaughan Walker's order that would have permitted real-time broadcast streaming of the trial imposed Monday  [see "TUOL" post 1/11/10]. The trial is likely to end before further consideration of the plan that would have transmitted audio and video of the trial via YouTube and the court's Web site to other courthouses nationwide can occur.

Dissenting justices of the unsigned opinion were Sonia Sotomayor, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer. Breyer deemed it "inappropriate, as well as unnecessary" to interfere with local judicial administration, and wrote that "the public interest weighs in favor of providing access to the courts."

The majority of the High Court bought into the argument of those seeking to freeze Judge Walker's order that broadcasting the trial would cause "irreparable harm" that could include intimidation and harassment of  witnesses opposed to gay marriage.

Supreme Court Won't Hear Cablevision Case

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Wrapping up the 2008 Term today, the U.S. Supreme Court denied certiorari in Cable News Network, Inc., et al. v. CSC Holdings, Inc. (08-448).

The High Court's refusal, without comment, to hear the case lets stand the unanimous 3-0 ruling of the U.S. Circuit Court of Appeals for the Second Circuit, which overturned a trial judge, by deciding that the Dolan family-owned Cablevision Systems Corp.(CSC) would not infringe copyrights through its new television recording service. CSC will enable subscribers to store tv programs on CSC's computer servers, rather than on a hard-top box. Customers who do not have a digital video recorder (DVR) can rely on a remote storage DVR (RS-DVR) to store programs requested by the customers, who can retrieve them for viewing with a remote control and standard cable set-top box.

CNN, CBS Corp., The Walt Disney Co., General Electric, News Corp. and other video content providers are the big losers in the Court's decision not to disturb the 2d Circuit ruling. The video content providers, backed by groups as divergent as music companies, Major League Baseball, and the Screen Actors Guild, argued that cable companies such as CSC would be taking programs that they paid the providers to air on cable systems and misappropriating the programs for an additional unlicensed use via RS-DVR.

The Supreme Court denial of a writ of certiorari likely derails efforts by the content providers to seek additional licensing fees from CSC and their ilk. The case invited comparisons to Sony Corp. v. Universal City Studios, Inc. (464 U.S. 417 (1984)) in which the Supreme Court held that VCR makers could not be held liable for giving consumers the means to make cassettes of copyrighted programs broadcast on television.