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Behavioral tracking; Ginsburg in light of Rehnquist

This article first appeared in the St. Louis Beacon, Feb. 6, 2009 - The biggest First Amendment issue related to the Internet in the coming year is the debate over "behavioral advertising" - a practice that some Internet sites use to track people's Internet search activity in order to target advertising. That is the view of First Amendment lawyers gathered at a winter ABA conference in Arizona.

The FCC is looking into behavioral advertising abuses as a result of complaints by users who find ads popping up indicating that advertisers know they have cancer or surf the net in search of porn. Many of these users think this is an invasion of their privacy.

Privacy advocates want the FCC to take action to restrict behavioral advertising techniques. Some solutions would require Internet users to agree to opt in to allowing such tracking; other solutions would permit them to opt out. Still another possibility would be to allow people to sign up on a do-not-track list similar to the popular do not call lists.

Another big Internet topic is what standards should be adopted for subpoenas to news sites seeking to obtain the identity of anonymous web posters. Some courts have ruled that it should be harder to get the names of anonymous posters than to get run-of-the-mill information during a lawsuit's discovery phase.

One approach by some First Amendment lawyers is to claim that state "shield laws" should provide protection for anonymous posters just as they do for anonymous sources used by reporters. Some lawyers at the ABA conference cautioned that this line of argument could be dangerous to news organizations. Currently, news organizations are not liable for the content of posts by third parties on their websites - in other words they can't be sued for a third party's post. If they claim they should not have to pass along the names of third party posters, legislators could get angry and take away this legal immunity from suit.

In a local case, a grand jury has subpoenaed the name and other identifying information of an anonymous poster for the Alton Telegraph. The newspaper has claimed protection under the state shield law. (See summary of Citizen Media Law Project at https://www.citmedialaw.org/threats/illinois-v-alton-telegraph)

The biggest legal news of the week is Justice Ruth Bader Ginsburg's surgery for pancreatic cancer. A listserv of constitutional law professors is in the middle of a heated back-and-forth about Ginbsburg's future. Some of the professors liken any attempt by Ginsburg to stay on the court to what one called former Chief Justice William H. Rehnquist's narcissism in staying on the court while he faced terminal cancer. Other professors are offended by the insensitivity of the reference to Rehnquist or the debate about Ginsburg at a moment when she still was in the hospital.

The immediate practical question is how many cases split 4-4 will have to be put off if she can't cast a deciding vote. Down the road, there is the growing likelihood that President Barack Obama could get an appointment to the court sooner than thought.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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