Welcome back for another week of What's Next, where we report on the intersection of law and technology. This week, we catch up with John O'Brien of Stokes O'Brien as he takes GirlsDoPorn.com to trial this week in San Diego. Plus, the Ninth Circuit rules that border officials don't have unfettered access to our phones after all. And Verizon goes after 5G fees. Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster3.

GirlsDoPorn.com and the Digital Era of Privacy and Sex Work

This week, 22 women are taking the operators of GirlsDoPorn.com (GDP) to trial. The 2016 lawsuit alleges that GDP owners Michael Pratt and Matthew Wolfe, as well as actor and recruiter Andre Garcia, told the women that their pornographic videos would be sold to a private buyer or for limited distribution overseas in Australia. Instead, the videos were featured online, and many of the women's identities leaked to family, friends, schools and work.

The bench trial before Judge Kevin Enright, has faced some procedural hurdles. First, Michael Pratt filed for bankruptcy in January and aimed to take the action to federal court. Instead, the case was remanded, and Pratt dropped his bankruptcy case, "indicating that the filing and removal was solely for the purposes of delaying the state court litigation," wrote Chief Judge Laura Taylor of the U.S. Bankruptcy Court in the Southern District of California. The bankruptcy court sanctioned Pratt $110,000 for bringing a frivolous bankruptcy action. Ahead of the start of this week's trial, the judge agreed to maintain the anonymity of the Jane Does listed in the lawsuit. However, lawyers for GDP, which include Aaron Sadock of the Panakos Law and Daniel Kaplan of the Law Offices of Daniel A. Kaplan, appealed that decision to both the The Fourth District Court of Appeal and the California Supreme court. For now, the women will remain anonymous.

Although the suit is a fraud case, the litigation could have important implications for women and sex workers' online privacy in the digital era. John O'Brien of Stokes O'Brien said the legal team will argue that the videos should betaken down from the internet to the extent possible, and that the women should be awarded compensatory and punitive damages. "GirlsDoPorn.com profits about $50,000 per video," O'Brien said. "And they pay the girls based on their lie about $3,000 to $7,000, depending on how attractive or how much trouble it is for them to coerce the girl out there. We're asking for punitive damages, because we think the whole company is based on oppression, and malicious and fraudulent conduct," said O'Brien, who is joined by Edward Chapin of Sanford Heisler Sharpand Brian Holm of The Holm Law Group.

The plaintiffs are also seeking an injunctive request that GDP must disclose who they are and the true conditions of their arrangement. "If they're somehow allowed to continue in the pornography business, they should not be allowed to use fake names or present contracts at 1 a.m. in a hotel room with no chance to read them and lying about them," he said.

Sadok and Kaplan claim they never promised that they would limit distribution to a single buyer or DVD release. Even if they had made verbal agreements that the videos would not be posted online, "the women would have discovered the fraud upon being handed the single page contract that gave [GirlsDoPorn] complete discretion to use the videos any way it wished," Sadok and Kaplan write in their trial brief.

Another claim that the women hope to prove in trial is that the defendants leaked their identities as a marketing technique. "After these girls are promised this video is going to be done under certain conditions, including anonymity and no internet exposure, somehow the videos get shared with the friends and hometown and social media of these girls. The defendants are the only ones with this information. We allege that it helps it go viral throughout wherever they're going to college."

After all, Michael Pratt owned or controlled Porn Wikileaks for a period of time, O'Brien said. The website is built to dox women in porn and had a page that was devoted to GDP, which was taken down after the plaintiffs filed their lawsuit, O'Brien said. GDP subscribers, who pay between $29 to $59 a month, are often active participants in finding out who the first-time porn actresses are. "They blog about it, and there's a forum," he said. "If you go on Reddit or PornWikiLeaks, there's chatter about who's girl #405. And then someone will say, 'Oh I think it's Sally Smith, and here's her Facebook.' And then someone will tag onto it and say, 'Here's her boyfriend. I found his Instagram.' And they all get harassed."

Porn site Pornhub has worked with the plaintiffs' team to take down the videos involving the 22 Does, but still hosts a GDP channel on its platform. O'Brien said he's not thrilled that Pornhub continues to work with the company.

"Our position is that the whole business is a fraudulent and unfair business practice, and the plaintiffs' counsel, including me, in this case have spoken with many, many other women, not just the women suing, and it seems to be a very common theme with this website that they don't tell the truth," O'Brien said.

O'Brien said that the women likely hope the outcome of the case will lead to a greater adhearance to a pornography worker Bill of Rights laid out by advocacy group Free Speech Coalition. O'Brien has also sought the guidance of pornography talent agents, who are licensed by the state of California. "I think ideally our clients would say people like GirlsDoPorn should need a talent agent license, so what they're claiming is monitored by the state," O'Brien said. "The ramifications of these transactions are arguably more than somebody buying a house or hiring a lawyer. These girls' lives have been ruined. And no one is paying attention to what these guys are telling them, what the contracts say, when they're presented. I would think our clients would want more legalities around how these transactions occur."

You can follow the case on The Recorder and Law.com as reporter Scott Graham relays the goings-on from the crowded courtroom in San Diego.

CBP Doesn't Have Limitless Access to Cell Phones at Border Crosses

I'm convinced Michael Dreeben is psychic. At this year's American Bar Association Annual Meeting, the former deputy solicitor general said the waning Fourth Amendment might get a second wind with applications to technology and online searches. And exactly a week later, the U.S. Court of Appeals for the Ninth Circuit overturned the conviction of a migrant from Mexico who was arrested for crossing the border with cocaine after the panel found a warrantless forensic scan of his phone violated the Fourth Amendment. That's the kind of intuition that only comes from 30 years of grinding away at Main Justice.

Here's why the Ninth Circuit vacated the conviction of a man who was caught crossing the border from Tijuana with about 30 pounds of cocaine in his car tire.

Miguel Cano's half a dozen trips across the border, some less than 30 minutes, triggered a secondary inspection from border police in July 2016. After uncovering vacuum-sealed packages of cocaine in his spare tire, Customs and Border Patrol officials manually searched his phone, but then used a search software called Cellbrite to scan his cell phone's text messages, contacts, call logs, media and application data.

Digital rights group the Electronic Frontier Foundation submitted amicus curiae briefs in the case, arguing that warrantless searches of cell phones do not fall under the border exception, and that even within the scope of the exception, it requires probable cause.

The Ninth Circuit said that though manual phone searches could be conducted, as granted by the border search exception to the Fourth Amendment, forensic phone searches require "reasonable suspicion." The court also clarified that under United States v. Cotterman, reasonable suspicion means that officials have reason to suspect border crossers are in possession of digital contraband, such as child pornography or malware.

"In light of the government's enhanced interest in protecting the 'integrity of the border' and the individual's decreased expectation of privacy, the Court has emphasized that 'the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior' and is 'struck much more favorably to the Government,'" the panel wrote in the opinion authored by Judge Jay Bybee.

Sophia Cope, senior staff attorney for the EFF, said the ruling is significant for protecting people's privacy.

"On the one hand, it's not everything we asked for, because our position for the last several years has been that border agents need probable cause warrants to search travelers' phones, laptops and similar devices given the immense privacy interest they have," Cope said. "To counteract the lack of a warrant, the court cabined off the circumstances under which a border search can be conducted."

After the ruling, border agents at all the ports of entry within the Ninth Circuit can no longer manually or forensically search devices for anything other than digital contraband, Cope said.

The court also emphasized that border officials have no authority to search for a crime. "This is true even if there is a possibility that such crimes may be perpetrated at the border in the future," the judges wrote. "So, for example, if U.S. officials reasonably suspect that a person who has presented himself at the border may be engaged in price fixing, they may not conduct a forensic search of his phone or laptop. Evidence of price fixing—texts or emails, for example—is not itself contraband whose importation is prohibited by law. Such emails may be evidence of a crime, but they are not contraband, and there is no law prohibiting the importation of mere evidence of crime."

The Department of Homeland Security does assert broad authority to conduct general law enforcement at the border, Cope said. "You see this in the case law, where people show up at the border and the government is not necessarily trying to interdict any contraband, they get an alert and say 'Oh this person showed up at the border, so we're going to use the border search exception to search their device.' They want to get their digital data that shows they're involved in some conspiracy, where there's a preexisting investigation, and they're using this person's presence at the border to get around the warrant."

Verizon Refuses to Pay Rochester's 5G Fees

Refusing to be slowed down in the race for 5G, the telecommunications industry is continuing to fight municipal fees. Verizon has sued the city of Rochester, New York, for charging companies $1,500 per year to attach 5G equipment to city-owned poles. The lawsuit, before Judge Elizabeth Wolford of the Western District of New York, claims that the charges violate the Federal Communications Act of 1934, which "bars local governments from imposing statutes, regulations, or requirements that prohibit or have the effect of prohibiting the provision of telecommunications services."

The lawsuit also cites last year's Federal Communication Commission preemption order that set out to slash $2 billion in local fees charged to carriers over 5G development, ruling that "local legal requirement constitutes an effective prohibition if it 'materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.'"

Verizon said it was forced to take legal action against the city to bring transformative 5G services to residents. "The City is insisting on chargingexorbitant and unlawful rates to deploy 5G antennas," said Verizon spokesperson Rich Young in a statement. "We're hoping they engage in a more reasonable way and reconsider these rates so that we can avoid litigation and focus our efforts on providing 5G to their community and those who live and work there. "

The city argues that these fees are standard. "The city of Rochester is dedicated to ensuring its infrastructure is protected and maintained to benefit taxpayers," said Justin Rob, director of communications and special events for Rochester, in a statement. "Other communications providers are complying with the law while building out their networks and paying the necessary fees. These fees are comparable to what other cities require. The city is confident in our position against this frivolous lawsuit. We will have no further comment on pending litigation."

On the Radar

Georgia's Voting Machines Head for the Junkyard After several tumultuous elections using Georgia's expired and vulnerable voting software, a federal judge in Atlanta has set a deadline for when the state needs to switch to modern machines. Judge Amy Totenberg issued an injunction barring Georgia from using its voting system after 2019, ahead of the 2020 presidential election. Read more from R. Robin McDonald here.

Fortnite Breach Exposes Security Holes in Gaming Industry Gamers hit Fornite video game developer Epic Games with a class action lawsuit following a January data breach that exposed users' passwords, credit and debit card numbers, and identifying information. Some lawyers argue that the high-profile nature of the game made it a target for the attack. However, the community atmosphere of many games could also lead to poorer cybersecurity practices on the part of users. Read more from Victoria Hudgins here.

LGBTQ YouTubers Allege Discrimination The hosts of LGBTQ news show "GlitterBombTV" allege that YouTube would not sell them ads, because of their "shocking content" and "because of the gay thing." Peter Obstler of Browne George Ross is representing the content creators in a lawsuit against the platform, which they claim systemically discriminates against videos from gay, lesbian and transgender posters. It's not the first time Obstler is going up against the leading video sharing site. Read more from Ross Todd here.

Autonomous Patents A Silicon Valley manufacturer of lidar systems for autonomous vehicles has accused two Chinese companies of infringing its patents. San Jose-based Velodyne LiDAR Inc. claims that Hesai Photonics Technology Co. Ltd. and Suteng Innovation Technology Co. Ltd. incorporated patented rotating devices into their competing products. The technology mounts to the roofs of self-driving cars and creates a 360-degree view from rotating laser emitters and avalanche photodiode detectors. Read more from Scott Graham here.

Thanks for reading. We will be back next week with more What's Next.