Media Law Monitor

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Obfuscating Mercy: How the California Supreme Court Finally Addressed

Secretive Pardons

By Selina MacLaren and Thomas R. Burke

In May of 2021, the California Supreme Court in Administrative Order 2021-05-26 announced a rule change to make it easier for the public to view clemency files for twice-convicted felons. The new rule rejects the decades-old practice of California governors automatically sealing clemency files, but places the onus on the public to move for unsealing.

A quirk of the California Constitution requires a governor to obtain state Supreme Court approval before pardoning or commuting the sentence of any person who has been convicted of two or more felonies. Cal. Const. article V, § 8. The purpose of the constitutional requirement, according to the Court, is to “provide a check on potential abuses of the power conferred on the executive.” Admin. Order 2018-03-28

Editors-at-Large

Ambika Kumar | SEA

Abigail B. Everdell | NY

Nathan Siegel | WDC

Cydney Swofford Freeman | LA

Contributors

Katherine M. Bolger

Michael T. Borgia

John M. Browning

Thomas R. Burke

Julie Capell

Robert Corn-Revere

Kelly M. Gorton

David M. Gossett

Bruce E. H. Johnson

Caesar Kalinowski IV

Ambika Kumar

Selina MacLaren

James Rosenfeld

Christopher W. Savage

John D. Seiver

Arielle Spinner

Eric M. Stahl

media@dwt.com | 877.398.8417

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Governors satisfy the oversight requirement by submitting a clemency file, often hundreds of pages long, to the state Supreme Court. The file may contain the applicant’s prison records, a recommendation from the Board of Parole Hearings, and letters of support from the community. Historically, this entire file was automatically kept under seal, creating a de facto “secret docket” at the state’s highest court.

"Before 2018, approval [of governors' pardon requests] by the California Supreme Court was effectively a formality: the Supreme Court had not denied a single [governor's pardon] request since 1930."

Before 2018, approval by the California Supreme Court was effectively a formality: the Supreme Court had not denied a single request since 1930 But in the final months of Governor Jerry Brown’s tenure, the Supreme Court denied 10 requests, baffling judicial observers. The 10 rejections thus suggest that the Supreme Court determined Brown had abused his power. But because of the categorical secrecy for clemency files, the details remain unknown

The Case of Rod Wright

In 2018, Governor Brown sought to pardon former state legislator Rod Wright. Wright was convicted in 1972 for felony auto theft and again in 2014 for charges related to living outside his elected district. Wright was sentenced to 90 days in jail for his 2014 conviction but served about 90 minutes.

Because of the dual convictions, Brown needed approval from the Supreme Court. The summary on the public docket (Wright (Roderick Devon) on Clemency, S251879) explained that Wright’s convictions were for nonviolent crimes and emphasized his public service. Aside from this summary, the public was not given access to any of the materials considered by the Supreme Court. The file—later revealed to be nearly 300 pages long—was entirely under seal.

FAC’s Motions

On November 20, 2018, two things happened: the Supreme Court granted Wright’s clemency recommendation, and the First Amendment Coalition (“FAC”) moved to unseal the file.

The California Rules of Court impose requirements for filing court records under seal. Under these rules, sealing is appropriate only to the extent necessary to protect an “overriding interest” that cannot be protected any other way. Cal. Rules of Court, Rule 2.550. In addition, the common law and article 1, section 3(b)(1) of the California Constitution mandate public access to judicial records. FAC argued that these rules should apply to clemency records, just as they apply to other records submitted to a California court.

The governor broadly opposed FAC’s motion. The Supreme Court sided with FAC, ordering Governor Brown to resubmit the clemency file “in the manner prescribed by Rules 8.45, 8.46 and 8.47 of the California Rules of Court.”

After some motions practice related to proposed redactions, the Wright clemency file was finally released to the public five months after the governor had submitted it to the Supreme Court. These records shed light on critical aspects of the

pardon, including the investigation by the Board of Parole Hearings that determined Wright deserves clemency, statements of support from several “prominent political leaders,” as well as an opposition from the district attorney who prosecuted Wright.

The Saga Continues

In the Wright matter, the Supreme Court clarified three separate times that California’s access rules apply to clemency files. Yet Governor Brown— and subsequently, Governor Newsom— continued to submit all clemency files under seal.

From December 2018 to May 2020, FAC filed seven more motions to unseal. Each time, the governor (represented by the Attorney General’s office) opposed In every instance, the Supreme Court repeated its holding in the Wright matter and ordered the governor to resubmit the file. Eventually, FAC requested a global order that would apply to all clemency matters going forward.

" On May 26, 2021, the California Supreme Court implemented a new rule that clarifies

the Court will no longer categorically treat clemency files as confidential. "

A New Rule

On May 26, 2021, the California Supreme Court implemented a new rule that clarifies the Court will no longer categorically treat clemency files as confidential. Admin. Order 2021-05-26 Instead, when a member of the public submits a motion to unseal, the governor must resubmit the file in conformity with the Court’s access rules.

While the new rule provides clarity, it is not without its critics.

On the one hand, pro-access groups criticized the rule for requiring a member of the public to affirmatively file a motion to unseal. In addition, the Supreme Court will not entertain motions filed after the recommendation is granted. Because this process can take any length of time (three to four months is typical), the public must file motions in a rush.

On the other hand, some criminal justice groups emphasized that clemency files can contain sensitive records. The Supreme Court’s response to these concerns was to allow for case-by-case redactions, but it rejected “a rigid rule shielding from public inspection” entire categories of documents.

Next Steps

On July 7, 2020— after two and a half years of litigation—Governor Newsom released over a thousand clemency records. But these records only scratch the surface. A multitude of clemency files have been filed—and continue to be filed—under seal.

With a little legwork, judicial observers can now learn more about what it takes to get a pardon or commutation by monitoring the Supreme Court’s docket and submitting motions to unseal Transparency may improve the odds for those seeking clemency and reduce the likelihood of abusive, unwarranted political pardons.

Thomas Burke, Rochelle Wilcox and Selina MacLaren served as counsel to the First Amendment Coalition.

Selina MacLaren is an associate in the Los Angeles office of Davis Wright Tremaine. Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine.

"F--- school, f--- softball, f--cheer, f--- everything," Except First Amendment Protections for Student Speech

By Robert Corn-Revere, John D. Seiver, and Caesar Kalinowski IV

In June 2021, the U.S. Supreme Court issued its highly anticipated ruling in Mahanoy Area School District v. B.L , 141 S. Ct. 2038 (2021), upholding students' free speech rights for the first time since 1969. In an 8-1 decision, the Court strongly reaffirmed the landmark case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and held the school could not punish a high school cheerleader's off-campus Snapchat message to friends.

Despite the vulgar nature of the message—"Fuck school fuck softball fuck cheer fuck everything" with an image of the student and her friend with their middle fingers raised—the Court found the teenager's critical opinion of school issues worthy of "robust First Amendment protections." Justice Breyer observed it "might be tempting to dismiss B. L.'s words as unworthy of … robust First Amendment protections," but concluded "sometimes it is necessary to protect the superfluous in order to preserve the necessary." And he identified a key government interest the school administration apparently overlooked: to prepare students for citizenship, "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." (emphasis added).

" [S]ometimes it is necessary to protect the superfluous in order to preserve the necessary " — Justice Stephen Breyer

The opinion for the Court avoided creating a bright line rule concerning where the speech occurs. "Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus." Instead, the opinion identified "three features of off-campus speech that often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech."

...continued on page 06

Biden Administration Rescinds

Trump's TikTok and WeChat Bans, Issues Two Executive Orders

Highlighting Policies on Chinese Tech Companies

By Michael T. Borgia, David M. Gossett, Ambika Kumar, Thomas R. Burke, and Kelly Valencia

In June 2021, President Biden issued two executive orders designed to address risks allegedly posed by Chinese technology companies. One order rescinds President Trump's orders banning TikTok, WeChat, and other Chinese apps—bans that never took effect because they came too late or were enjoined by courts. The other order prohibits U.S. investment in specified Chinese companies that "undermine the security or democratic values of the United States and [its] allies." The two orders from President Biden shift— but do not completely overhaul—U.S. policy toward Chinese technology companies.

...continued on page 07

Senators Propose Substantial Revisions to Section 230's Protections for Online Providers

By Christopher W. Savage, Ambika Kumar, and James Rosenfeld

Earlier this year, three Democratic Senators released the SAFE TECH Act, which aims to require online service providers to address fraud, harassment, and the use of social media to organize extremist violence. Although the Act appears to have stagnated in Congress, it is still the most viable attempt to amend Section 230 of the Communications Decency Act. And, if passed, it would dramatically change the landscape of online liability.

Background

It is no understatement to say the internet would not be what it is today without Section 230. The statute effectively eliminates most ordinary legal responsibilities assumed by traditional publishers with respect to content provided by users and other third parties.

" It is no understatement to say the internet would not be what it is today without Section 230. "

Section 230 was in part a response to a 1995 trial court decision that found an internet service provider could be liable for the content of its subscribers' posts, as the publisher of the content. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *6 (N.Y. Sup. Ct. May 24, 1995). The court relied heavily on the fact that the provider advertised its practice of controlling content on its service and actively screened and edited material posted on its message boards.

Congress enacted Section 230 to remove the "grim choice" created by Stratton Oakmont: a provider that voluntarily filtered content would be responsible for all posts, while "providers that bur[ied] their heads in the sand and ignore[d] problematic posts would escape liability altogether." Fair Hous. Council v. Roommates.com LLC, 521 F.3d 1157, 1163 (9th Cir. 2008).

continued from page 04... "F--- school, f--- softball, f--cheer, f--- everything,"

Except First Amendment Protections for Student Speech

First, the Court examined the right of the school in loco parentis, noting that "geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, the Court held that "courts must be more skeptical of a school's efforts to regulate offcampus speech," noting that "political or religious speech that occurs outside school or a school program or activity" undoubtedly comes with "a heavy burden to justify intervention." Third, the Court reminded educational institutions that "America's public schools are the nurseries of democracy" which "only works if we protect the 'marketplace of ideas'" and "that protection must include the protection of unpopular ideas, for popular ideas have less need for protection."

" America's public schools are the nurseries of democracy "

Justice Breyer's opinion departed from the Third Circuit's reasoning which had relied extensively on where the Snapchat message was typed and sent— in other words, the physical location of the student and/or the student's use of "school-owned, -operated, or -supervised channels." (The Third Circuit had held that "Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur".) BL v. Mahanoy Area Sch. Dist., 964 F.3d 170, 189 (3d Cir. 2020). The U.S. Supreme Court, however, made clear that such explicit holdings were unnecessary—

the cheerleader's off-campus, critical speech had not substantially disrupted or targeted school functions and therefore "d[id] not meet Tinker's demanding standard."

Justice Alito wrote separately (with Justice Gorsuch joining) to clarify the majority's holding. He noted the enormous disparity in treatment that would result if the government could only punish public school students' speech, concluding that attending public schools cannot be conditioned on relinquishing constitutional rights. He asserted that "[i]f today's decision teaches any lesson, it must be that the regulation of many types of offpremises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory."

Justice Thomas issued the lone dissent, echoing themes he first set forth in his concurring opinion in Morse v. Frederick, 551 U.S. 393, 422-33 (2007)—a case involving a student's "Bong Hits 4 Jesus" sign at a school-sponsored event. Based on historical analysis and drawing largely on 19th century state court decisions, Justice Thomas concluded that public school students lack First Amendment rights and suggested he would reverse both Tinker and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (where the Court held that public school students could not be compelled to salute the American flag and recite the Pledge of Allegiance).

Justice Alito directly addressed Justice Thomas's dissent on originalist grounds, noting the dated state court decisions are "of negligible value for present purposes." The concurrence explored the doctrine of in loco parentis upon which the dissent focused and found it failed to explain the delegation of parental authority that occurs in American schools today. For "whatever [the student's] parents thought about what she did," the concurrence noted,

"it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity."

"

[Alito] noted

the enormous disparity in treatment that would result if the government could only punish public school students' speech...

"

It remains to be seen how the principles articulated by the Court will apply to future controversies involving offcampus speech and "whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up school community." However, "to justify the prohibition of a particular expression of opinion," the school would have to show that "its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

Davis Wright Tremaine LLP filed an amicus brief in the Mahanoy case on behalf of Mary Beth and Joe Tinker, key litigants in the U.S. Supreme Court's landmark 1969 student-speech ruling Tinker v. Des Moines Independent Community School District.

Robert Corn-Revere is a partner and John D. Seiver is of counsel in the Washington, D.C. office of Davis Wright Tremaine. Caesar Kalinowski IV is an associate in the Seattle office of Davis Wright Tremaine.

continued from page 04... Biden Administration Rescinds Trump's TikTok and WeChat Bans, Issues Two Executive Orders Highlighting Policies on Chinese Tech Companies

ICT Supply Chain Risks, TikTok, WeChat, and the June 9, 2021, Executive Order

On June 9, 2021, President Biden issued an order that rescinds President Trump's 2020 bans of TikTok and WeChat and builds on a 2019 order concerning U.S. critical information and communications technology (ICT). See, e.g., https:// www.nytimes.com/2021/06/09/us/ politics/biden-tiktok-ban-trump. html; https://www.wsj.com/articles/ biden-revokes-trump-actionstargeting-tiktok-wechat-11623247225; https://www.washingtonpost.com/ technology/2021/06/09/tiktok-banrevoked-biden/

The 2019 Trump order, Executive Order 13873, declared a national emergency based on an "unusual and extraordinary" national security threat posed by the possible use of technologies created or provided by companies under the control of foreign adversaries to compromise critical U.S. ICT. The order authorized the Secretary of Commerce to ban certain transactions with these companies.

Invoking this emergency, President Trump issued three orders prohibiting transactions with (1) TikTok and its parent company, (2) WeChat and its parent company, and (3) other Chinese apps. None of these orders took effect: In litigation where DWT represented groups of TikTok and WeChat content creators, courts blocked the TikTok and WeChat bans. (DWT argued successfully that these bans likely violated users’ First Amendment rights and the International Emergency

Economic Powers Act (IEEPA); that the government had not demonstrated an actual risk to national security from either app; and that the government had not demonstrated that a flat ban of either app was necessary to address any threat from the apps.) The Biden Administration never implemented the third Trump order.

" President Biden relied on the declared national emergency as the basis for the June 9, 2021, order—but took a different approach. "

Rather than rescind or change Executive Order 13873, President Biden relied on the declared national emergency as the basis for the June 9, 2021, order—but took a different approach. The June 9 order revokes the orders banning TikTok, WeChat, and other apps and instead requires the government to look at "potential indicators of risk" before banning transactions, including:

• "[O]wnership, control, or management by persons that support a foreign adversary's military, intelligence, or proliferation activities" are "subject to coercion or cooption by a foreign adversary" or are "involved in malicious cyber activities";

• Use of the software to conduct espionage, including by allowing a foreign adversary to access sensitive government, business, or personal data;

• "[A] lack of thorough and reliable third-party auditing of connected software applications";

• The "scope and sensitivity" of the data the software collects;

• The number and sensitivity of the application's users; and

• "[T]he extent to which identified risks have been or can be addressed by independently verifiable measures."

The Secretary of Commerce must continually evaluate these risks, and where they are "undue" or "unacceptable," may prohibit related transactions.

" The June 9 order also targets human rights abuses "

The June 9 order also targets human rights abuses, stating that "[i]f persons who own, control, or manage connected software applications engage in serious human rights abuse or otherwise facilitate such abuse, the United States may impose consequences on those persons in action separate from this order."

Finally, the order directs the Secretary of Commerce to provide recommendations to protect sensitive data from the unrestricted sale, transfer, or access by persons or companies of foreign adversaries and on additional executive and legislative actions to address risks of connected software developed in such countries.

Investments in Chinese Companies in Military and Surveillance Sectors

Under June 3, 2021, Order

On June 3, 2021, the Biden Administration issued Executive Order No. 14032 that prohibits U.S. investments in a specific list of Chinese companies. A fact sheet accompanying the order states that the listed companies "undermine the security or democratic values of the United States and [its] allies."

The order targets companies involved in "military, intelligence, and security research" or that develop or provide surveillance technologies "to facilitate repression or serious human rights

abuses." The prohibitions took effect August 2, 2021, and current investors must divest their holdings by June 3, 2022.

The June 3 order builds on Executive Order 13959 issued by President Trump in November 2020, which found that China was developing its military, intelligence, and security capabilities through its large, "ostensibly private" economy, including by compelling civilian companies to support and modernize its military apparatuses. Executive Order 13959 prohibited investment in certain listed "Communist Chinese military companies" (CCMCs) or others designated by the Secretaries of Defense or Treasury.

" A fact sheet accompanying the [June 3] order states that the listed companies "undermine the security or democratic values of the United States and [its] allies. "

The June 3 order largely preserves the core of Executive Order 13959, prohibiting investment in specified companies that "operate or have operated in the defense and related materiel sector or the surveillance technology sector of the economy of the PRC." There are, however, three notable differences:

• The June 3 order includes companies in the "related materiel" sector, possibly an effort to address claims that a company's relationship with the Chinese military is too attenuated to justify inclusion on the list—claims that two companies have successfully made.

• The June 3 order prohibits transactions with companies operating in the "surveillance technology sector." The

accompanying fact sheet states that the order "expand[s] the U.S. Government's ability to address the threat of Chinese surveillance technology firms that contribute— both inside and outside China—to the surveillance of religious or ethnic minorities or otherwise facilitate repression and serious human rights abuses."

• The Secretaries of Defense and Treasury no longer have the power to unilaterally designate companies as CCMCs. Instead, the responsibility lies principally with the Secretary of Treasury, who must consult with the Secretary of State and may, if they deem appropriate, consult with the Secretary of Defense.

The Annex to the June 3 order lists 59 companies—many overlapping—to supersede and replace the list of 44 CCMCs maintained under Executive Order 13959. The new list will be called the Non-SDN Chinese Military-Industrial Complex Companies list (CMIC list) instead of the CCMC list.

Conclusion

Although it is early in the Biden Administration, the June 2021 executive orders suggest three guiding principles shaping U.S. policy on technology companies operating in China. First, the Biden administration believes threats from China are real, significant, and must be addressed.

Second, the Biden Administration will take a more nuanced approach to specific threats. ByteDance and Tencent—owners of TikTok and WeChat—sought to address the Trump Administration's concerns through a series of targeted measures, but the administration rejected those efforts. The June 9 order suggests that such measures may be sufficient in the future.

Third, the Biden Administration will focus not only on security risks from

Chinese companies, but also those companies' involvement in human rights abuses.

Similar trends are emerging from the Biden Administration's enforcement of existing regulation of international trade and foreign investments. The Biden Administration's review of foreign investments and transactions under the Committee on Foreign Investment in the U.S., for example, remains equally rigorous after substantial expansion of the Committee's jurisdiction under the Trump Administration.

U.S. companies must be increasingly cognizant of both investments in and investments from foreign entities under this administration, especially in the technology, infrastructure, and identifiable data sectors.

Michael T. Borgia and David M. Gossett are partners in the Washington, D.C. office of Davis Wright Tremaine. Ambika Kumar is a partner in Seattle and Thomas R. Burke is a partner in San Francisco. Kelly Valencia was an associate at Davis Wright Tremaine and is now Senior Counsel at Gilead Sciences, Inc.

continued from page 05...

Senators Propose Substantial Revisions to Section 230's Protections for Online Providers

The immunity is widely credited with enabling the proliferation of online content and has been expansively interpreted by courts to bar the vast majority of claims based on user content. But in recent years, elected officials, courts, and others have raised concerns about how Section 230 operates in practice, with some focused on unlawful content that Section 230 permits providers to disseminate, such as harassment and hate speech.

The announced SAFE TECH Act attempts to address those concerns.

Proposed Revisions to Section 230

The Act would significantly change Section 230 in three ways, by: (1) reducing the type of content protected; (2) making it more difficult and costly to prevail on Section 230 in court; and (3) allowing requests to require providers to remove allegedly unlawful material.

Limiting the Scope of Protected Material

Although Section 230 has always contained exceptions—primarily for federal intellectual property, criminal, and federal privacy laws— those exceptions have not materially altered the way providers operate. For example, other statutes and commonlaw regimes protect providers from liability for infringing third-party content, and criminal and privacy laws typically require providers to manage their own behavior more than they require vetting of third-party content.

The SAFE TECH Act would change this.

First, the Act would exempt from any protection content for which the provider pays or is paid. In other

words, websites could face liability for defamatory or misleading material in ads or in content for which the provider pays. This amendment would fundamentally change the current online advertising ecosystem, under which advertisers, not websites, bear the responsibility for their own content. Under the Act, websites would likely require liability insurance as a condition of hosting paid content.

Second, the Act would exempt a raft of other laws, including those relating to:

• Civil rights;

• Antitrust;

• Stalking, harassment, and intimidation;

• International human rights; and

• Wrongful death.

Thus, for wide swaths of content, Section 230 immunity would no longer be available. And, likely, websites would again face a choice between not vetting any content, or risk becoming responsible for all content. Consequently, unlawful content could proliferate, and lawful content could be suppressed—undoing Section 230's progress in many respects and undermining its goals.

"

[U]nlawful content could proliferate, and lawful content could be suppressed—undoing Section 230's progress in many respects and undermining its goals. "

The Ease of Applying Section 230

Today courts frequently dismiss claims targeting third-party content at an early stage of the case, without requiring discovery. But the SAFE TECH Act would expressly forbid that approach and, instead, mandate

a court treat Section 230 immunity as an affirmative defense—to be pled and proven by the provider—rather than a reason to dismiss a lawsuit at the outset.

This would increase the cost to providers of defending claims and enable plaintiffs to file questionable lawsuits, hoping to extract a settlement. The burdens of such an approach could well fall disproportionately on small providers who may not have the resources to fight prolonged court battles.

Removal of Problematic Material

Finally, the SAFE TECH Act would permit claims for injunctions against "material that is likely to cause irreparable harm." In other words, anytime someone believes that a posting causes them "irreparable harm," they can seek injunctive relief if a provider refuses to remove it.

Again, this would have serious consequences— to evade Section 230 immunity, an individual need only request injunctive relief, even if the underlying content is lawful.

First Amendment Limitations?

No matter what lawmakers' intent might be, the SAFE TECH Act would likely cause some providers to severely limit the amount of speech they host, including speech that is lawful; to take down third-party speech upon complaint; or to avoid publishing third-party content altogether.

In any event, the First Amendment might provide protection where Section 230 does not—as the First Amendment generally requires some level of knowledge to impose liability on the distributor of third-party speech.

This article was originally featured as a technology, privacy, and security advisory on DWT.com on February 10, 2021. Our editors have chosen to feature this article here for its coinciding subject matter.

Christopher W. Savage is a partner in the Washington, D.C. office of Davis Wright Tremaine. Ambika Kumar is a partner in the Seattle office of Davis Wright Tremaine. James Rosenfeld is a partner in the New York office of Davis Wright Tremaine.

Washington State Passes New Anti-SLAPP Statute

By Ambika Kumar, Bruce E. H. Johnson , and Eric M. Stahl

Effective July 25, 2021, the state of Washington has a new antiSLAPP statute—replacing the version that the Washington Supreme Court declared invalid in 2015. The statute restores important defenses for news organizations, political groups, and other speakers and publishers against defamation and similar claims.

The Uniform Public Expression Protection Act, a modified version of which Washington adopted, is designed to deter meritless litigation that targets

the exercise of free speech. Like its predecessor, Wash. Rev. Code § 4.24.525, the new law allows a defendant to file a special motion for expedited relief if the claim falls within three categories:

• "[C]ommunications in a legislative, executive, judicial, administrative, or other governmental proceeding";

• "[C]ommunication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding"; and

• "[E]xercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Washington State Constitution, on a matter of public concern."

A court must dismiss the lawsuit if it finds the claims subject to the antiSLAPP statute and that either:

• The responding party fails to establish a prima facie case as to each essential element of the cause of action;

• The moving party establishes that the responding party failed to state a cause of action upon which relief can be granted; or

• The moving party establishes that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.

"

The Uniform Public Expression Protection Act, a modified version of which Washington adopted, is designed to deter meritless litigation that targets the exercise of free speech. "

In making its decision, a court must "consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment."

While a motion for expedited relief is pending, all other proceedings, including discovery, are stayed. A court may allow "limited" discovery if a party shows that "specific information is necessary to establish whether a party has satisfied or failed to satisfy" its burden on the merits "and the information is not reasonably available unless discovery is allowed."

If the court grants the motion, the moving party is entitled to its attorneys' fees and costs—so long as the moving party provided the responding party 14 days' notice before filing the motion. If a court denies the motion, the responding party may recover fees and costs if the court finds the motion was "not substantially justified or filed solely with intent to delay the proceeding." In the event of a denial, the moving party also has an automatic right of appeal.

The statute contains numerous exemptions, including real property claims, claims for wrongful death or bodily injury, insurance claims, and claims under state labor laws. The statute also exempts claims under the state Consumer Protection Act, those for common law fraud, and those brought against a person selling or leasing goods or services for a communication related to the sale or lease of those goods or services.

However, these last three exemptions are inapplicable for claims arising from the gathering, receiving, posting, or processing of information for communication to the public or for the creation, dissemination, exhibition, or advertisement or promotion of an artistic work; or claims related to the communication, gathering, receiving, posting, or processing of consumer opinions, such as ratings and reviews.

" The statute contains numerous exemptions, including real property claims, claims for wrongful death or bodily injury, insurance claims, and claims under state labor laws. "

The uniform law replaces Wash. Rev. Code § 4.24.525, which the state Supreme Court held unconstitutional in Davis v. Cox, 183 Wash. 2d 269, 351 P.3d 862 (2015). In Davis, the court found the burden of proof on the responding party—to prove a probability of prevailing on the merits by clear and convincing evidence—invalid.

The uniform law fixes this defect by incorporating the standards needed to defeat a motion to dismiss under Washington Civil Rule 12(b)(6) and 12(c), as well as Washington Civil Rule 56. These rules—for motions to dismiss,

motions for judgment on the pleadings, and summary judgment motions—largely mirror the federal rules of civil procedure.

Ambika Kumar, Bruce E. H. Johnson and Eric M. Stahl are partners in the Seattle office of Davis Wright Tremaine.

SCOTUS Limits Reach of Computer Fraud and Abuse Act: Nefarious Reasons Are Not Enough for Criminal Liability

By David M. Gossett, Katherine M. Bolger, John M. Browning, and Michael T. Borgia

In June 2021, the U.S. Supreme Court resolved an important question about the meaning of provisions prohibiting "unauthorized access" or "exceeding authorized access" to computer systems and databases under the Computer Fraud and Abuse Act of 1986 (CFAA).

The Court, in a 6-3 decision in Van Buren v. United States, 141 S. Ct. 1648 (2021), sided with lower courts that found the CFAA does not prohibit accessing data for a purpose other than the purpose for

which the user was permitted access in the first place. The decision will have farreaching consequences for anyone who uses computers to access and retrieve information digitally.

The CFAA subjects to criminal and civil liability anyone who "intentionally accesses a computer without authorization or exceeds authorized access." 18 U.S.C. § 1030(a)(2). The term "exceeds authorized access" means "to

access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. § 1030(e)(6).

Everyone agrees that these provisions of the CFAA prohibit traditional hacking done for a malicious purpose—for example, breaking into a computer system by using an illegally obtained password to steal data or encrypt files.

They also cover "insider threats"— employees who, for example, have access to a portion of a computer system but who access portions that they are not authorized to access (e.g., restricted systems containing business secrets).

"

The decision

will have far-reaching consequences for anyone who uses computers to access and retrieve information digitally."

For decades, courts have been divided whether the CFAA also prohibits accessing computer systems or files with permission but for a forbidden reason. Does an employee "exceed[] authorized access" by, for example, downloading materials the employee is allowed to access for work, but with the intent of quitting and taking those materials to another employer?

"

Does an employee 'exceed[] authorized access' by, for example, downloading materials the employee is allowed to access for work, but with the intent of quitting and taking those materials to another employer? "

The facts of Van Buren provide a stark example. A police officer, Nathan Van Buren, was offered $5,000 to check whether someone was an undercover police officer by using a license plate number. Van Buren searched for the number in a license plate database to which he had access, but only for legitimate law enforcement purposes.

In fact, the request was part of a sting operation, and Van Buren was arrested after carrying out the search and

offering that he had information to share. Prosecutors charged Van Buren with several crimes, including violations of the CFAA. Van Buren argued that he was authorized to access that database, and the fact he accessed it for an unauthorized reason did not mean he had "exceed[ed] authorized access."

The U.S. Supreme Court agreed. To the majority, the case was simple. The Court relied primarily on the text of the statute, particularly the definition of "exceeds authorized access," to conclude that Van Buren was "entitled" to obtain the material he obtained and in the manner that he obtained it. That he accessed the material for an improper purpose did not change the textual analysis.

The Court also concluded that this reading was more consistent with the overall structure of the CFAA, as it harmonized the analysis under the "without authorization" and "exceeds authorized access" prongs of the statute. Under the majority's reading, both prongs pose a straightforward "gates-up-or-down" inquiry—one either has permission to access a system or part of a system or one does not.

" In fact, the government conceded that the access provisions in the CFAA "prohibit[] only unlawful information 'access,' not downstream information 'misus[e].' "

The Court also concluded that the government's reading of the statute would mangle the CFAA's civil liability provisions, reasoning that the statute's civil remedies for "loss" and "damage" are best suited to address the consequences of traditional computer hacking (loss of data, inability to access systems, etc.)—not claims of data "misuse." In fact, the government conceded that the access provisions

in the CFAA "prohibit[] only unlawful information 'access,' not downstream information 'misus[e].'"

Finally, the Court noted that "the Government's interpretation of the statute would attach criminal penalties to a breathtaking amount of commonplace computer activity." "If the 'exceeds authorized access' clause criminalizes every violation of a computer-use policy," the Court explained, "millions of otherwise law-abiding citizens are criminals." Any employee who is authorized to use an employer-supplied computer only for business purposes would, for example, violate the CFAA by sending a personal email.

Van Buren is critically important to a vast array of companies. The decision will limit the ability of some companies to use the CFAA to enforce terms of service that prohibit particular uses of their data as well as the ability to punish employee misconduct.

And the decision is a welcome result for computational journalism. As The Markup, a nonprofit news organization that conducts data-driven investigations into digital technology, argued in its amicus brief in the litigation, a different, broader reading would have infringed on established First Amendment protections for journalists. DWT attorneys Kate Bolger, Jack Browning, and David Gossett represented The Markup in the litigation.

David M. Gossett and Michael T. Borgia are partners in the Washington, D.C., office of Davis Wright Tremaine. Katherine M. Bolger is a partner and John M. Browning an associate in the New York office of Davis Wright Tremaine.

Mandatory COVID-19 Vaccination Policies: Issues Every Entertainment Industry Employer Should Consider

By Arielle Spinner and Julie Capell

In an effort to keep cast, crew, and others safe, production companies and distributors are considering whether to require individuals to be fully vaccinated against COVID-19. Vaccination policies play a crucial role in productions’ evolving safety protocols, but there are numerous factors to consider when determining whether to require or encourage vaccination.

1. Is your business required by federal, state, or local law to mandate employee vaccination?

President Biden recently directed federal OSHA to adopt an Emergency Temporary Standard (ETS), expected to be published in the near future, requiring private businesses with 100 or more employees to mandate COVID-19 vaccinations or adopt a mandatory testing policy. Many state and local governments have

implemented—or are planning to implement—similar vaccine mandates. Employers with questions about applicable vaccine mandates should contact legal counsel.

2. Is your production permitted by the guilds’ Return-to-Work Agreement or required by a network/ distributor to mandate vaccination?

The guilds’ Return-to-Work Agreement includes specific requirements surrounding when,

how, and for which positions production companies can mandate vaccination for cast and crew. For example, the Agreement permits production companies to mandate vaccination for individuals who work in “Zone A.” Employers with unionized workforces need to consider potential bargaining obligations when implementing mandatory vaccine policies

Additionally, some networks/ distributors are now requiring production companies to mandate vaccination for either all cast and crew or cast and crew in certain “zones” on set, even for non-guild productions. Production companies should consult with the applicable networks/distributors to confirm compliance with internal and contractual requirements.

3. Is your business producing any live events that are subjected to federal, state, or local vaccine requirements for performers, attendees, and others?

Some jurisdictions have implemented COVID-19 safety regulations for large events and “mega events,” both indoor and outdoor. Many of these regulations include vaccination requirements for performers, audience members, and others. For example, in Los Angeles County, all attendees at both indoor and outdoor mega events must show proof of full vaccination against COVID-19 or a pre-entry (diagnostic) test result prior to entry. Additionally, at indoor events in Los Angeles, performers may only remove their face coverings to perform if they are fully vaccinated or tested for COVID-19 at least twice per week. Companies with questions about applicable requirements for live events should contact legal counsel.

4. Is a mandatory vaccination policy prohibited in any jurisdiction in which your business operates or employs people?

Some state and local governments have implemented—or are planning to implement—laws that prohibit businesses from requiring their workers to be vaccinated against COVID-19. Employers should contact legal counsel to understand the applicable laws for any jurisdiction where they have employees or are operating. This includes every location in which a production is filming. Businesses covered by both the federal COVID-19 vaccine mandate and a state or local law that prohibits such a mandate should consult an attorney for specific guidance due to the complex issue of which law controls.

5. May an employer issue a vaccine mandate for those in certain positions rather than its entire workforce?

Employers who are not required by law to mandate COVID-19 vaccinations for all employees may elect to require vaccines for certain groups of employees. For example, it may be more clearly in the interest of public health to require vaccination for Zone A cast and crew but not necessary for individuals who work entirely remotely or who work alone in their own offices with no interaction with others (e.g., post-production).

6. May employers require independent contractors, subcontractors, and any others onsite to be fully vaccinated?

Employers should consult with legal counsel to determine whether any applicable federal, state, or local laws either require or prohibit them from applying a vaccine mandate to anyone other than their own employees. In some localities, such as San Francisco and Los Angeles,

businesses in some industries are legally obligated to ensure that only fully vaccinated individuals enter the premises. If no legal obligation or prohibition applies, employers may elect to require that contractors and others who enter its premises are fully vaccinated. Employers should consider whether such a vaccination policy would serve its goals, be administratively feasible, and be in the interest of public health. If an employer decides to mandate vaccination to individuals other than its own employees, the employer should ensure that it has the administrative resources and processes in place to execute the policy in an efficient, practicable, and lawful manner.

7. Must employers ask individuals to provide proof of vaccination when vaccination is mandated by law? If so, what type of proof is both sufficient and permissible under applicable laws?

Laws that mandate vaccines often specify the level of proof required. Depending on the applicable law, businesses may permit individuals to “self-attest” that they are fully vaccinated, or businesses may need to ask for documentary proof of vaccination. Some states, such as California, specify what types of documentary proof of vaccination are necessary to comply with state mandatory vaccination law. In most jurisdictions, employers who voluntarily implement vaccine mandates may elect what type of proof is sufficient under their policies. For guild productions, companies should consult the Return-to-Work Agreement to confirm compliance.

8. Must the employer issue medical privacy authorization forms to individuals before collecting any information about individuals’ vaccination status?

Some states, such as California and Texas, have laws that require businesses to issue specific authorization forms before collecting certain categories of information from individuals. In those states, businesses should ensure that covered individuals review and sign these forms before they ask individuals to provide medical information such as COVID-19 vaccination status. In other locations, employers may ask to see vaccine documentation without specific privacy disclosures. If the employer obtains a copy of vaccine records, it should maintain those records as confidential medical information.

9. If an employer is simply encouraging but not requiring vaccination, is it lawful for the employer to provide incentives to encourage employees to get vaccinated?

Some businesses provide incentives, such as one-time bonuses or ongoing discounts on their health insurance payments, to employees who get fully vaccinated against COVID-19. These are generally legal. However, businesses are encouraged to consult with legal counsel to verify that proposed incentives are acceptable. Some laws may limit the permissible types of incentives (e.g., HIPAA Nondiscrimination and the Wellness Program exception; Americans with Disabilities Act; Affordable Care Act; and Internal Revenue Code section 105(h)’s nondiscrimination provision). Businesses should contact an experienced employment law attorney for specific guidance.

10. Does a business that requires vaccination, either voluntarily or as required by law, have the administrative infrastructure and resources to engage in interactive and reasonable accommodation

processes with individual employees who request a religious or medical accommodation?

Businesses that require COVID-19 vaccination for employees must be prepared to consider accommodation requests from employees on the grounds of a sincerely-held religious belief or a qualifying medical condition or disability. Depending on the size of the employee population and the capabilities of the Human Resources team, this may be a challenging and time-consuming undertaking. Employers should prepare in advance for how these exemption requests will be processed and considered.

11. If a business requires vaccination and an employee requests accommodation for religious or disability reasons, what is the employer’s obligation?

When an employee cannot be vaccinated for religious or disability reasons, the employer must engage in the interactive process with the employee and determine how—and if—the employee can be reasonably accommodated. The standards for accommodation for religious and disability accommodations often differ, and employers are obligated to consider each accommodation situation on a case-by-case basis. For example, depending on the circumstances, such as the job duties and cost of the available accommodations, it is possible that there are no reasonable accommodations for in-person work. In such circumstances, the employer must assess and discuss available options with the employee, such as fully remote work or a leave of absence. Overall, it is important for employers to apply accommodation standards consistently. Businesses should contact an experienced employment law attorney for specific guidance.

12. What if an employee who is required by law or the employer’s policy to be vaccinated refuses to get vaccinated and does not qualify for a religious or medical accommodation?

If an employee does not qualify for accommodation for religious or disability reasons, the employer is not legally obligated to accommodate the employee and could terminate the employee. Even so, some employers choose to accommodate such employees anyway with remote work, transfer to an alternative position, or a leave of absence. Before implementing a mandatory vaccination policy, employers should consider how they will handle such situations when they arise to ensure consistent application of policies and protocols.

Employers should carefully consider these and other questions when deciding how to address the issue of COVID-19 vaccination in their workplaces. The issues identified in this list are not exhaustive. Because federal, state, and local laws are rapidly changing, employers are wise to work closely with legal counsel and remain prepared to update employment policies as needed.

Arielle Spinner is an associate and Jonathan Segal and Julie Capell are partners in the Los Angeles office of Davis Wright Tremaine.