Sex crime victim will not be jailed for tweeting the names of her attackers

On July 23, 2012, I wrote about Savannah Dietrich who tweeted the names of her alleged juvenile attackers after they were reportedly offered a lenient plea bargain. It appears that the media attention surrounding Dietrich's case may have led her attackers to drop their motion to charge her with contempt for outing them.

Dietrich alleged she was sexually assaulted in August 2011 while passed out at a party. Two juveniles were charged with felony first-degree sexual abuse and misdemeanor voyeurism and they pleaded guilty to those charges this past June. Dietrich was upset with the plea bargain so she decided to speak out.

The matter was handled in juvenile court and under Kentucky law the proceedings are closed to protect the confidentiality of those involved. Even if Dietrich's attackers did not drop their motion, I believe her lawyer may have been successful in blocking it because her attackers took photos of the incident and circulated them on the Internet.

The attorneys for Dietrich's attackers made a strategic error by filing the contempt motion because of the Streisand Effect. The contempt motion had the exact opposite effect of what was intended in that her attackers wanted their names kept out of the media. However, the filing of the motion brought more publicity to the case due to social media.

Therefore, in the Social Media Age lawyers must be able to understand how digital technology may affect their cases because a wrong move may harm their clients' interests and destroy their case.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

NCAA Penn State sanctions prove schools should not social media monitor their students or employees

The Penn State Jerry Sandusky child sex abuse scandal is the worst scandal in the history of college athletics and has now drawn unprecedented NCAA sanctions. The sanctions were handed down by the NCAA because the evidence from the Freeh Report along with the criminal trial of former coach Jerry Sandusky indicated that "Penn State's leadership failed to value and uphold institutional integrity, breaching both the NCAA Constitution and Division I rules."

On November 10, 2011, I stated that, "between legal fees, settlements, judgments, possible fines etc... it is possible that this scandal may cost Penn State $100 million dollars or more. This does not factor in the damage to its reputation along with the loss of future economic opportunities." It appears that this scandal may end up costing Penn State closer to $150-$200 million dollars now that the NCAA has taken unprecedented action.

Digital evidence from more than ten years ago appears to have persuaded former FBI Director Louis Freeh that there was a systematic cover up regarding the Sandusky matter. The emails that the Freeh Report uncovered may have been the determining factor that led to the NCAA's sanctions against Penn State.

According to the NCAA's website, Penn State's sanctions include:
-$60 million fine. The NCAA imposes a $60 million fine, equivalent to the approximate average of one year's gross revenues from the Penn State football program, to be paid over a five-year period beginning in 2012 into an endowment for programs preventing child sexual abuse and/or assisting the victims of child sexual abuse.
-Four-year postseason ban. The NCAA imposes a four-year postseason ban on participation in postseason play in the sport of football, beginning with the 2012-2013 academic year and expiring at the conclusion of the 2015-2016 academic year.
-Four-year reduction of grants-in-aid. For a period of four years commencing with the 2013-2014 academic year and expiring at the conclusion of the 2016-2017 academic year.
-Five years of probation. The NCAA imposes this period of probation, which will include the appointment of an on-campus, independent Integrity Monitor and periodic reporting as detailed in the Corrective Component of this Consent Decree.
-Vacation of wins since 1998. The NCAA vacates all wins of the Penn State football team from 1998 to 2011.
-Waiver of transfer rules and grant-in-aid retention. Any entering or returning football student-athlete will be allowed to immediately transfer and will be eligible to immediately compete at the transfer institution, provided he is otherwise eligible.
-Individual penalties to be determined. The NCAA reserves the right to initiate a formal investigatory and disciplinary process and impose sanctions on individuals after the conclusion of any criminal proceedings related to any individual involved.

The Big Ten has also weighed in on the matter. According to The Patriot-News, Penn State will not be eligible to receive at least $13 million dollars in bowl revenue over the next four years. Therefore, Penn State will lose at least $73 million dollars in revenues related to the Sandusky matter before legal fees and expenses, civil settlements, judgements, etc... are factored into the entire cost of the situation.

This matter should be a warning to every NCAA institution. If a school employs a social media monitoring company to track its students and/or employees and it learns about a Tweet or post that may indicate illegal activity and the university does not immediately report it to the proper legal authorities it may be fined tens of millions of dollars by the NCAA.

The bottom line is that schools that listen to self-described experts/leaders/consultants, etc... who create fancy marketing materials and digital presentations that provide the false impression that they understand NCAA compliance, public policy, student education issues, and the law, may be in for a huge shock in the near future.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Sex-crime victim may be jailed for tweeting names of her attackers

According to the Louisville Courier-Journal, Savannah Dietrich may be incarcerated for contempt-of-court charges for tweeting her attackers' names after they were allegedly offered a lenient plea bargain. Dietrich's attackers also circulated photos of the alleged incident.

Dietrich alleged she was sexually assaulted in August 2011 while passed out at a party. Two juvenile attackers were charged with felony first-degree sexual abuse and misdemeanor voyeurism. The teen perpetrators pleaded guilty to those charges this past June and Dietrich was upset with the plea bargain so she decided to speak out.

Under Kentucky law, juvenile court is closed to protect the confidentiality of those involved with the proceedings. However, since Dietrich's attackers took photos of the alleged incident and circulated them does Dietrich have a valid argument that her attackers voluntarily gave up any right to confidentiality?

To learn more about these issues you may contact me at www.shearlaw.com

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is Russia trying to censor the Internet?

According to the New York Times, Russian lawmakers have approved legislation that would strengthen its ability to control its citizens' Internet activity. The bill will impose hefty fines for unsanctioned protests and it has reinstituted criminal charges for slander. According to Alla Zabrovskaya, public relations director of Google Russia, the proposed law may also enable the government to blacklist whole domains when only part of the hosted content is illegal.

The bottom line is that while social media was created to encourage interaction and collaboration with people from around the world, there are still some institutions that are afraid of what may happen if too many people speak with each other and voice their opinions.

To learn more about these issues you may contact me at www.shearlaw.com

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is Washington State's Facebook Voter Registration Application a Danger to Democracy?

Should voter registration be entrusted to Facebook? According to the Associated Press, Washington State believes Facebook should be utilized to register new voters. Washington State has had online voter registration since 2008 and approximately 475,000 registrations or changes have been processed since the program's inception.

The big question is can Facebook be trusted to be part of the voting process? In 2009, a judge approved a $9.5 million dollar settlement over Facebook's Beacon program because of privacy issues. Last year, Facebook reached a privacy settlement with the FTC because of privacy problems. Within the past month, it appears that Facebook has agreed to pay approximately $20 million dollars because of privacy issues regarding its Sponsored Stories program.

While I applaud unique and creative ways to utilize social media, should Facebook be utilized to register to vote when it appears to have a problem with protecting its users' privacy?

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is trademark and copyright law worthless in the social media age?

The Digital Millenium Copyright Act (DMCA) was signed into law in 1998 to protect the intellectual property rights of content creators while also providing a safe harbor for internet service providers and websites who act in good faith to remove infringing content once they become aware of the matter. The Lanham Act was enacted in 1946 and has been amended several times. In 1999, the Anticybersquatting Consumer Protection Act amended the Lanham Act to address domain name trademark issues.

Does the DMCA or the Lanham Act still work in the Social Media Age? On June 16, 2010, I blogged that intellectual property protection is useless in the social media age. Since that post, very little has been done to better protect content creators from the illegal use of their intellectual property without their permission or compensation. Congress has not been able to draft compromise intellectual property legislation that better protects digital intellectual property rights while also creating a fair and equitable system to protect innocent internet service providers and websites from liability.

According to a recent San Francisco Chronicle article, Facebook appears to be a haven for the sale of counterfeit goods. Ironically, the article mentions that Facebook has been notified about this issue but it appears they will not do anything about it unless the trademark holder personally contacts them. Does this response demonstrate that Facebook has a huge problem with ads for counterfeit goods on its platform? Under Viacom v. YouTube's latest appellate court ruling, will Facebook soon have significant legal liability issues to address?

The bottom line is that that it takes time for the law to catch up with technology.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Tax advantages for online companies may soon end

Mom and pop stores and companies that are primarily brick and mortar may soon be getting a more equal playing field with their online competitors due to a potential change in public policy and the law. This change is that online companies may soon be required to collect state sales tax for purchases made on the Internet even if the company doesn't have a place of business in the state where the consumer is located.

Some web based companies have relied on this tax advantage to grow their business. However, while online only businesses may have prospered because of this advantage some brick and mortar retailers appear to have been harmed. With the proliferation of instant price checks, social media, and other forms of new technology, this tax and price advantage has been magnified to a level never imagined.

This change in public policy may also help states collect much needed revenue from web based businesses. According to the Wall Street Journal, online shopping accounts for more than $200 billion dollars in revenues. If there is an average of a 6% sales tax on these sales that is $12 billion dollars in additional revenues for state governments that may be utilized to help close budget gaps, pay down debts, reduce layoffs, etc....

The bottom line is that a change in the law to expressly allow states to collect sales tax on Internet purchases is sound public policy. While I am not in favor of paying an additional 6% for goods I buy online as a Maryland resident, I am in favor of seeing more people purchase goods from local businesses whom I believe this public policy change may benefit.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Penn State Freeh Report on Sandusky proves NCAA schools should not social media monitor student athletes

"The Report of the Special Investigative Counsel Regarding the Actions of the Pennsylvania State University Related to the Child Sexual Abuse Committed by Gerald A. Sandusky" was released today. The author of the report, Louis Freeh stated, "the most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized".

The report's findings are more troubling than imagined. The report and Louis Freeh's public statements after the report's release indicate that Penn State engaged in a massive cover up to protect its reputation. I believe the linchpin of these findings was the digital evidence. Since the investigators were unable to interview former Penn State President Graham Spanier, former Athletic Director Tim Curley, former Vice President Gary Schultz, and former head coach Joe Paterno after emails indicating a cover up may have occurred a reasonable person may conclude a cover up happened.

Without the emails that indicated that all four men were aware of Sandusky's criminal activities in 2001, it would have been difficult to conclude that a cover up occurred. However, the digital evidene appears to indicate that a cover up went from the head coach through the athletic director to the president of Penn State.

This scandal demonstrates that schools should not hire social media monitoring companies to follow their student-athletes' or their employees' social media accounts. With access or knowledge comes responsibility. Companies with names like UDiligence, Varsity Monitor, Jump Forward, etc... are trying to persuade schools that they need to monitor their student-athletes in the digital world in a manner that they don't do so in the real world. Some companies claim that because they only monitor public and not password protected student-athlete content their services are better for universities. Unfortunately, the people who run these social media monitoring companies don't understand social media, NCAA compliance, or the law.

Once a school has been put on notice that one of their student-athletes has committed a crime they must follow the Clery Act and report it. What happens if a school is social media monitoring a star student-athlete and becomes aware that the student has or may have committed a crime or an NCAA infraction before a big game? Will the school suspend the student for the game or allow the student to play?

The bottom line is that athletic directors who continue to listen to self-described social media consultants may be putting not only their programs, but also their schools, and themselves at risk for tremendous legal liability. Did Joe Paterno ever think that emails from 10+ years ago could destroy his reputation and create tremendous legal liability for Penn State and/or his family? Therefore, why would any coach or athletic director want to create more digital evidence that may be utilized against his program and/or himself in the future?

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Delaware passes student-athlete social media privacy legislation

Delaware is the first state to pass student social media privacy legislation. While HB 309: An Act to Amend Title 14 of the Delaware Code Relating to Education was passed by both the Delaware General Assembly and Senate over the weekend, it still needs to be signed by Delaware's governor to become law.

Delaware's HB 309 utilized Maryland's SB 434 as a template. Maryland's SB 434 passed the Maryland Senate 46-0 but died at the end of the legislative session due to the logjam created when the legislature was unable to pass a budget. Despite the setback in Maryland, multiple other states and Congress have introduced legislation that may protect schools from social media related lawsuits while also protecting the personal digital privacy rights of students.

HB 309 is needed because colleges and universities across the country are requiring some of their students to download social media monitoring software onto their personal electronic devices or accounts in order to keep their scholarships. This practice has become an epidemic. The CEO of one social media monitoring company has boasted that requiring students to provide access to password protected digital content “is the new drug testing — it will be as common as being asked to take a drug test in the next two years."

Under Delaware's HB 309, colleges and universities may not:
Require a student to provide his Facebook username and/or password to a school employee or agent of the school to obtain or keep a scholarship
Require a student to download social media monitoring software onto their personal iPhones, computers, accounts, etc...
Require a student to Facebook Friend a school employee or agent of the school

In return, Delaware colleges and universities may have a legal liability shield against claims that they have a legal duty to monitor their students' personal social media accounts. This legal liability shield may become extremely important in the near future in light of the recent lawsuit against the University of Virginia, its coaches, and athletic director for failing to properly monitor one of their star student-athletes.

Hiring social media consultants who advocate monitoring students' personal social media/digitial accounts may lead to lawsuits and judgements that may financially harm public schools and taxpayers. The bottom line is that colleges and universities in Delaware and across the country need to reexamine their general student and student-athlete social media policies to ensure that they do not violate state and/or federal law.

To learn more about legal student social media policies and how to properly educate your students and employees about social media you may contact me at http://shearlaw.com/attorney_profile.

(Full Disclosure: I advised Rep. Brady and Sen. Bushweller's offices on HB 309 to ensure that it would mutually benefit colleges, universities, and students.)

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Occupy Wall Street Tweets May Be Subject to Subpoena

While the Occupy Wall Street protests have cooled down the past several months, the legal issues involved with them have heated up. According to the Wall Street Journal, a Manhattan judge recently ruled that Twitter has to turn over several months of an Occupy Wall Street protester’s tweets. The tweets may be utilized against the protestor at trial.

In April, the judge in the Occupy Wall Street protestor's case ruled that the protestor does not have the right to quash a subpoena for public tweets. At that time, I stated that, "I generally agree with the main point of this decision (that the protestor doesn't have the right to quash the subpoena) that public Tweets are fair game,"

If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.

To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.