Welcome back for another week of What's Next, where we report on the intersection of law and technology. Here's what we've got for you this week:

>> A Reddit user who criticized the policies of Jehovah's Witnesses will remain anonymous after a judge's ruling.

>> Huawei's way back into trade with the U.S. federal government.

>> 3 takeaways from the ruling allowing the proposed securities class action against Ripple Labs to proceed.

Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

"Far From Settled:" Online Free Speech

On Monday evening, a federal judge handed down a long-awaited order in a case where the Jehovah's Witnesses church asked social media site Reddit to reveal the identity of an anonymous user who posted critical content using the group's copyrighted works.

U.S. District Judge James Donato of the Northern District of California granted the Electronic Frontier Foundation's motion to quash the subpoena that the church's administrative body, Watch Tower Bible and Tract Society of Pennsylvania, served to Reddit in January 2019 seeking identifying information of a contributor by the name of Darkspilver.

Under the Digital Millennium Copyright Act (DMCA), the subpoena demanded Darkspilver's subscriber information, name, telephone number, address, email and IP address. Reddit declined to respond to the subpoena, and the Electronic Frontier Foundation intervened on behalf of the anonymous user.

Donato went against the recommendation of U.S. Magistrate Judge Sallie Kim of the Northern District of California, who had ruled Reddit must reveal the identity of the user, but only to attorneys involved in the case.

Darkspilver and the EFF had argued his anonymity was protected under the First Amendment, and Kim agreed it applied in the case. In his ruling, Donato said that considering the constitutional arguments was "problematic" and created "additional complications."

"This was not really necessary to address freedom of expression concerns because 'copyright law contains built-in First Amendment accommodations.' The doctrine of fair use provides everything needed to balance the competing interests of the First Amendment and the copyright laws," he said. " … It is a developing area where the standards are far from settled."

Donato found that Darkspilver's posts did fall under fair use.

"The only authorized purpose for the subpoena under the DMCA was to discover his identity as an alleged copyright infringer to protect Watch Tower's copyrights," Donato said. "If Darkspilver establishes that he made fair use of the copyrighted works, no claim of copyright infringement could plausibly be alleged against him, and the subpoena would not be authorized under the DMCA."

The EFF's Alex Moss said her client had every right to share comments and concerns about Watch Tower. "We are glad that Darkspilver is safe from unmasking, and that a judge saw the important free speech and fair use issues at play here."

Watch Tower's counsel, Paul D. Polidoro, an in-house lawyer for Watch Tower in Warwick, New York, said in an email that his team respectfully disagrees with the court's conclusion. "We will be analyzing the decision and considering our options in due course," he said.

Huawei's Next Move

In February, U.S. District Judge Amos Mazzant of the Eastern District of Texas rejected Huawei's constitutional challenge to the U.S. law that prohibits the company from selling its telecom equipment to the federal government.

In a 57-page opinion, Mazzant denied the Shenzhen-based tech company's motion for summary judgement.

Huawei and it's attorneys from Jones Day, Morgan Lewis & Bockius and Siebman, Forrest, Burg & Smith argued that the law, Section 889 of the John S. McCain National Defense Authorization Act, violates the bill of attainder, due process and vesting clauses.

Jones Day's Glen Nager said his team was disappointed in the judge's decision to deny Huawei's motion for summary judgement, but appreciated the thoughtful and vigorous questions Mazzant asked both sides. "The case is part of a very nationally and internationally visible controversy," Nager said. "It is a substantial task of any judge in a visible moment. It was always an uphill climb."

Here's a quick rundown of the judge's findings on the vesting clause claims, in particular:

"Huawei's argument goes like this: the most fundamental principle of separation of powers is that different branches of government write the law and apply the law; in recognition of that principle, the Constitution's Vesting Clauses prohibit Congress from exercising the executive and judicial powers of adjudicating facts and applying law to individuals; when Congress enacted Section 889, it adjudicated facts and applied law to Huawei; accordingly, Section 889 violates the Vesting Clauses," wrote Mazzant in the opinion.

Huawei's legal team also argued that since Section 889 alleges that the Chinese government controls Huawei's operations, the statute "does prevent the Executive and Judicial branches from performing their constitutional functions," according to the opinion.

The judge said he was not persuaded by Huawei's arguments, noting that "Congressional action that is particularized is not presumptively nonlegislative" and that Section 889 does not prevent the branches of government from performing their Constitutional duties.

"What Huawei pejoratively labels as Congress unconstitutionally adjudicating facts is better characterized as a thorough congressional investigation into a potential threat against the nation's cybersecurity," he said. "Congress's investigation led to the passing of a defense-appropriations bill as a prophylactic response to that threat."

Nager noted that the judge recognized that Congress, in enacting the law, found Huawei to be untrustworthy and thus a national security risk, but at the same time held Congress hasn't adjudicated Huawei to be guilty of anything. "You can't have it both ways," Nager said.

Mazzant has yet to enter a final judgement, but Nager said a potential next step could be appealing the ruling to the U.S. Court of Appeals for the Fifth Circuit. Nager said their basic arguments are not going to change if the case moves to the Fifth Circuit.

Ripple coin (XRP) on computer's motherboard

3 Takeaways on the Ripple Labs XRP Ruling

A proposed class of cryptocurrency investors will get another crack at claims that Ripple Labs deceived them into purchasing XRP, which they allege is an unregistered security.

Last week, The Recorder's Ross Todd reported that Chief Judge Phyllis Hamilton of the Northern District of California denied Ripple Labs' motion to dismiss the case.

Ripple's Boies Schiller Flexner and Debevoise & Plimpton attorneys attempted to knock out the lawsuit by arguing the litigation triggered the statute of repose, a deadline for bringing a securities suit within three years of the first public offering. But Hamilton said the consolidated complaint, filed Aug. 5, 2019, was valid, since Ripple Labs made its first "bona fide" public offering of XRP after Aug. 5, 2016.

Here are some of the most intriguing bits of the opinion.

1. First Offer Rules Without Precedent Ripple cited Stolz Family Partnership L.P. v. Daum, a case that decided the statute of repose counts down from the first "bona fide" public offering. Lawyers for the plaintiff argued that the statute takes effect after the last public offering. Hamilton said enforcing the "last offer" rule would nullify the effect of the statute of repose. "In short, in the absence of controlling Ninth Circuit or Supreme Court authority, the court has discretion to choose the applicable rule for determining when § 77m's statute of repose commences," she wrote. "Because the first-offered rule is better reasoned than its last-offered counterpart, the court adopts it as controlling here."

2. Initial Distribution Hamilton found that Ripple's contention that the plaintiff needed to purchase his XRP as part of an initial distribution of stock, instead of getting it on the secondary market, was an overreach. She cited Justice Clarence Thomas' dissent in the Supreme Court's decision in Gustafson v. Alloyd Co., arguing that Congress could have explicitly limited certain securities claims to initial distributions if that was its intention.

3. Live to Fight Over Securities Definitions Another Day The judge did not speculate about XRP's status as a security. Instead, she said, "defendants save their dispute with that theory for another day and assume—solely for the instant motion—plaintiff's legal position that XRP qualifies as a security."

On the Radar

Street View Snooping As objectors raise concerns over a lack of cash flow to plaintiffs in the proposed settlement over Google's Street View vehicles infiltrating unencrypted WiFi networks, the judge overseeing the case called the deal "a paradigmatic case of injury and non-ascertainable damages." At a fairness hearing, U.S. District Judge Charles Breyer of the Northern District of California said he thought "there was injury, and I think that it's an important vindication of an individual's rights to be able to seek redress in a court for an injury, especially for an injury for privacy." Read more from Ross Todd here.

SCOTUS & Chill Several congressmen are hoping to make the high court and circuit courts more transparent. Reps. Hank Johnson, Mike Quigley and Jerry Nadler have sponsored legislation that would require the U.S. Supreme Court to begin posting live audio of oral arguments within two years. The circuit courts would have to start streaming audio of en banc panels within a year and all arguments in two years under the bill. "As I have said before, we in Congress, whether we like it or not, are generally on camera in our hearings. This keeps us accountable for what we say and reflects a democratic process in action for the people we serve," Quigley said. "It should be no different in our courts." Read more from Jacqueline Thomsen here.

Fintech's New Regulatory Normal The U.S. Treasury Department rolled out regulations dictating the Committee on Foreign Investment's review process that ought to put legal financial tech leaders on notice. Some of the guidelines seek to provide more scrutiny around who is investing in U.S. tech companies that are critical to the nation's military and security operations. "This is such an expanded group of companies because the way CFIUS looks at this now is like this is an episode of 'Homeland,'" the television series, said Doreen Edelman, founder and chairwoman of Lowenstein Sandler's global trade and policy practice. Read more from MP McQueen here.

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