NJ Federal Court: Password Protected Facebook Posts Covered By Stored Communications Act

A New Jersey federal district court recently ruled that non-public Facebook posts are protected by the Stored Communications Act.  The decision in Ehling v. Monmouth-Ocean HospitalService Corp., demonstrates that courts are continuing the trend of recognizing that we still have an expectation of privacy in the digital age.

In Ehling, a paramedic working for a hospital made an alleged inappropriate post on her password protected Facebook account.  The post was forwarded by one of the paramedic's Facebook friends to management who disciplined the paramedic because of the post.  Initially, the paramedic challenged the discipline before the NLRB and lost. Subsequently, the paramedic filed a lawsuit in federal court claiming that management violated the federal Stored Communications Act and the common law invasion of privacy tort.  

While the Court granted summary judgment in favor of hospital management on both claims it stated, "The Court finds that, when users make their Facebook wall posts inaccessible to the general public, the wall posts are “configured to be private” for purposes of the SCA. The Court notes that when it comes to privacy protection, the critical inquiry is whether Facebook users took steps to limit access to the information on their Facebook walls. Privacy protection provided by the SCA does not depend on the number of Facebook friends that a user has."

This decision is a huge victory for privacy because it recognizes that employers and schools may not require employees and/or students turn over their digital user names, passwords, or password protected digital content.  The bottom line is that employers and schools may not require their employees or students to "Facebook Friend" them as a requirement to keep their scholarship or job unless they are interested in losing a lawsuit.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

New Jersey Bans NCAA Social Media Monitoring Companies

New Jersey Governor Chris Christie proclaimed that New Jersey employees have an expectation of privacy in the digital age when he signed A2878 into law earlier today.  New Jersey has joined the growing number of states that are protecting the personal digital privacy of their employees and students.  At least 13 states have enacted similar laws and 36 states along with Congress have introduced bills to protect NCAA schools, students, employers, employees, etc... from companies that are selling social media monitoring legal liability time bombs. 

Some social media monitoring companies may claim they are a "leader" in social media monitoring and/or in "educating" student-athletes.  Does the NSA claim they are monitoring personal digital accounts to educate?  No.  Therefore, any claim by Varsity Monitor, UDiligence, Fieldhouse Media, etc...that they are monitoring to "educate" is absolute *&%%&*$%. 

Varsity Monitor, UDiligence, and Fieldhouse Media each sell social media monitoring services that NCAA schools in at least 13 states may not utilize to track the personal digital accounts of their coaches and/or student-athletes.  Schools deploying the social media monitoring services of these companies may be fined hundreds of thousands of dollars, and/or may be sued for violating their student's first and/or fourth amendment rights, and/or may lose millions of dollars in federal funding.

According to Deadspin, Varsity Monitor may have some troubling ethical and legal problems to address.  The Courier Journal reported that Varsity Monitor's Centrix Social service was caught last year monitoring University of Kentucky student-athletes for using the terms "Arab" or "Muslim" online.  Why did Sam Carnahan, the owner of Varsity Monitor allow this to occur?

According to Time Magazine, UDiligence was monetizing the personal photographs of the student-athletes it was monitoring to advertise its services until it was confronted about this troubling practice.  Unfortunately, UDiligence's founder Kevin Long only removed the offending photos from his UDiligence web site but not another one of his company web sites (I have screen shots if he claims otherwise).  This demonstrates that schools, student-athletes, and sports related entities should think long and hard before trusting any entity that Mr. Long owns or controls.

The most troubling service may be Fieldhouse Media because it appears to be trying to differentiate itself as having less invasive tactics than the other companies.  NCAA athletic departments should not be fooled.  It appears that in order for Fieldhouse Media's social media monitoring service to properly work  student-athletes need to at least authenticate their social media username(s).  Arkansas, California, Delaware, Illinois, Michigan, New Jersey, and New Mexico have generally banned schools from being able to ask a student to verify this information.

Fieldhouse Media's Kevin DeShazo's business practices appear to raise serious ethical questions.  For example, last year Mr. DeShazo created a press release announcing his social media monitoring service that quoted me without my cooperation.  Did Mr. DeShazo ask for my permission to be quoted in a press release designed to sell his social media monitoring services? No. Why is Mr. DeShazo trying to associate my reputation with a practice that I along with lawyers and risk professional from around the country believe may create tremendous legal and financial risks?  

If you perform due diligence on Mr. DeShazo you may find some issues that warrant further explanation.  For example, according to his publicly available LinkedIn Profile from last year it states that before he started his social media monitoring firm he had no verifiable social media or NCAA compliance/advisory experience.  Interestingly, according to his recent publicly available LinkedIn Profile it now claims that prior to starting his social media monitoring company he was working for a social media marketing firm. If Mr. DeShazo was actually working for a social media marketing company before he started his social media consulting firm why wasn't it listed previously? Why has Mr. DeShazo recently claimed he launched Fieldhouse Media in 2010 (I have screen shots if this is denied) which conflicts with his LinkedIn Profile claims and the information on file with the Oklahoma Secretary of State?

In 2001, George O'Leary, Notre Dame's head football coach resigned five days after being hired because of "inaccuracies" in his published biography.  In other words, Mr. O'Leary was caught intentionally misleading NCAA athletic departments about his background.  After George O'Leary, Jayson Blair was caught creating a web of lies and was terminated from the New York Times, and then James Frey, the author of "A Million Little Pieces" was caught lying to Oprah.   

Anyone that approaches schools to sell services to track personal social media accounts is selling a legal liability time bomb.  If a school hires a social media monitoring firm to track the personal digital content of their students or employees and it misses an indication that there may be a crime committed it may cost the school more than $100 million dollars.  For proof, just review the Penn State emails regarding the Jerry Sandusky matter.  Does a school want to be on the hook for tens or hundreds of millions of dollars in legal liability because it was utilizing a social media monitoring service to track personal digital accounts?    

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Google States in Lawsuit Users Have No Legitimate Expectation of Privacy

The Guardian recently reported that consumer interest group Consumer Watchdog uncovered a digital privacy case that may better protect the privacy of school provided student digital accounts.  Fread v. Google was filed on April 29, 2013, by two university students who allege that Google unlawfully and intentionally intercepts electronic communications (emails and other data collected by the service) from their school provided Google Apps For Education accounts.  The lawsuit claims that Google's cloud based school service is utilizing user data in a manner that violates the Electronic Communications Privacy Act of 1986.  

To better understand Google's Apps for Education program it is essential to read the agreement that Google requires schools to execute to obtain the service.  Google generally offers this program to secondary or post-secondary schools for free (there may be maintenance and/or other costs associated with implementation and/or operation of the service).  While the default setting for the U.S. Google Apps for Education service is one that does not allow for Google to serve ads, it is troubling that the agreement provides schools the ability to data mine their students with the “click of a mouse” in the Admin Console.  

Why has Google provided schools the ability to behavioral advertise to students based upon their school emails, attachments, uploaded videos and related digital activity?  Does the agreement include the ability to behavioral-advertise so cash strapped schools may negotiate an advertising revenue share with Google in the future when they need an easy-to-implement new income stream? 

Since Google provides schools the ability to turn on and off the behavioral advertising function for its school based services it makes me wonder what Google is doing behind the scenes with student content.  Is Google’s Apps for Education service a Trojan Horse to data mine and erode our children’s personal privacy and safety?  How is this service able to so easily go in and out of data mining mode with just a "flip of a switch" by a school administrator?  Why isn't Google more transparent regarding its data mining capabilities for the services it offers to schools?  Does this indicate that Google believes that students don’t have an expectation of privacy when utilizing its school branded services?

It appears that Google presumes that its Apps For Education users don't have an expectation of privacy.  To defend its practices, in its motion to dismiss Fread, Google directly quotes from a 1970's case, Smith v. Maryland, 442 U.S. 735, 743-744 (1979), "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties".  This case was decided before the widespread adoption of cell phones, email, the cloud, and other digital technologies. 

In U.S. v. Jones, 132 S. Ct. 945 (2012), the most recent major privacy case the Supreme Court has decided, Justice Sotomayor in referencing Smith's central premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties, stated "[t]his approach is ill suited in the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."  Justice Sotomayor's statement clearly diminishes the central tenet of Smith and her philosophy has resonated recently with state lawmakers and courts around the country. 

State legislatures and the courts are moving towards recognizing that one has an expectation of privacy in the digital age.  For example, at least 13 states have enacted legislation in the past 15 months that protects employees and students from generally being required to provide access to their 3rd party created personal digital accounts.  Earlier this year, Texas enacted HB 2268 that requires law enforcement to obtain a warrant before accessing one's personal email accounts or cloud content.  In addition, a federal district court in Minnesota recently stated that students have an expectation of privacy regarding their personal electronic accounts.  These news laws and court rulings demonstrate that our courts and legislatures firmly acknowledge that we have an expectation of privacy despite third parties storing our content. 

Google's actions speak louder than its words. In 2010, Google listed its privacy principles and they included:  "Develop products that reflect strong privacy standards and practices; Make the collection of personal information transparent; and Give users meaningful choices to protect their privacy".  If Google practiced its privacy principles it would be more transparent about how it processes student data and it would strictly prohibit data mining in its Google Apps For Education Agreements. 

Fread raises some important issues about student privacy in the digital age.  It demonstrates the need for school technology providers to make their users' personal privacy a top priority. Unfortunately, it appears that absent court guidance and/or Department of Education rules that ban the data mining of school sanctioned digital accounts, some cloud providers may continue to put profits ahead of the need for privacy in an educational setting.  Until technology providers are legally banned from data mining school provided digital accounts, students and parents/guardians must be informed of the risks associated with utilizing school provided digital services that may erode personal privacy and put our children's safety at risk.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.  

Doctor sued for $1.5 million for allegedly photographing patient without consent and posting on Facebook

According to ABC News in Chicago, a former Northwestern University student has claimed that after she was admitted to Northwestern Memorial Hospital a doctor took photos of her without her consent and posted them online.  This is not the first time that it has been alleged that an employee in the medical field has posted online photos of patients without their consent.  Unfortunately, this will not be the last time either.   

The doctor allegedly posted photographs of the patient on Instagram and Facebook with "attached statements of commentary" about the patients condition. The plaintiff is claiming invasion of privacy and infliction of emotional distress.  If these allegations are proven true, it would not surprise me that the hospital and/or doctor may be liable for more than the $1.5 million dollars that the complaint requests.   

This type of behavior has no place in the medical profession.  Hospitals need to ensure that they have the proper policies in place and that their employees are trained regularly to ensure their employees fully understand these issues.  Spending money on preventative training is a lot less expensive than defending and/or losing a lawsuit.     

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.  

Illinois Enacts Right To Privacy in the School Setting Act

Illinois has recently become the 2nd state in the country to enact social media privacy legislation that provides protection to the personal digital accounts of K-12 and post-secondary students. Michigan was the first state to enact social media privacy protections for K-12 and post-secondary students last year.  Multiple other states across the country have enacted social media privacy laws that protect post-secondary school students.   

The Right to Privacy in the School Setting Act was enacted because of several troubling social media related situations in Illinois.  For example, there was an incident where an Illinois public middle school violated the constitutional rights of several students by requiring some students to turn over their Facebook and email usernames and passwords.

Unfortunately, this aspect of the act is very troubling and will have unintended consequences:

Section 10. Prohibited inquiry.
(d) This Section does not apply when a post-secondary school has reasonable cause to believe that a student's account on a social networking website contains evidence that the student violated a school disciplinary rule or policy.

 Northwestern University will be required to change its student-athlete social media policy before 1/1/2014 due to the new law.  Northwestern's Online Soical Networking Student-Athlete policy states,  "You must provide full access to members of your coaching staff and/or selected members of the Athletics Department for any and all personal online networking pages." and "You must fully participate in any system developed by your coaching staff to assist in self-monitoring your teammates' personal online networking pages (e.g., buddy system)." This language clearly violates the new law. 

As a parent of young children, I would never turn over the passwords of their personal digital accounts absent a warrant and/or a court order and I believe this law is poorly drafted.  Does this law violate the Stored Communications Act and/or a student's first and/or 4th amendment?  Time will tell.

The bottom line is that K-12 and post-secondary schools must ensure they do not create social media policies that violate state/federal laws and/or our Constitution.  Its ironic that social media was intended to expand the freedom of speech; unfortunately, the reality is that some institutions that don't like the messages being created are using social media to curtail free speech rights.   

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved. 

CA School District Lodi Implements Unconstitutional Student Social Media Policy

Colleges and high schools across the country are implementing unconstitutional social media policies that are requiring state legislatures, Congress, and the courts to  show them the error of their ways.  For example, Utah State and Northwestern University implemented clearly unconstitutional social media policies directed at their student-athletes.  Due to these policies, Utah and Illinois enacted legislation banning these schools' social media policies. 

The Lodi Unified School District in California recently enacted a student social media policy that infringes on the 1st amendment rights of those who participate in extracurricular activities.   This new policy covers student-athletes, student newspaper reporters, band members, chess club members, the glee club, the lesbian, gay, bisexual and transgender club, etc...  The policy clearly violates the First Amendment. As Tinker v. Des Moines states, "students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

In addition to violating the First Amendment, this new policy violates California Education Code Section 48907 that protects students' free speech rights in California.  The bottom line is that K-12 schools and post-secondary schools must be more aware of the policies that their administrators are implementing to ensure they don't create tremendous legal liability.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved. 

New federal legislation aims to stop the digital exploitation of children

The Forbidding Advertisement Through Child Exploitation Act (FACE Act) of 2013 was introduced in Congress on July 10, 2013 by U.S. Congressman John J. Duncan, Jr. (R-Tenn.) to help protect the  personal privacy of children and teens.  The official title as introduced states, "[t]o prohibit providers of social media services from using self-images uploaded by minors for commercial purposes."

The FACE Act states, "(a) provider of a social media service may not intentionally or knowingly use for a commercial purpose a self image uploaded to such a service by a minor." The Act empowers the FTC to promulgate regulations under section 553 of title 5 of the United States Code to implement the Act.  This aspect of the legislation is extremely important because it appears to provide the FTC the flexibility to create regulations that will enable it to account for changes in technology.    

To be effective, legislation should have adequate enforcement mechanisms.  This bill appears to enable not only the FTC, but also state attorney generals and/or state officials and/or state agencies to enforce the Act.  According to the bill, a "state may enforce the act by bringing a civil action to: enjoin such act or practice; enforce compliance with such section or such regulation; obtain damages, restitution, or other such compensation on behalf of residents of the State; or obtain such other legal and equitable relief as the court may consider to be appropriate."

The Act specifically states that it would not preempt states or political subdivisions of a state from enacting a law that provides minors greater personal privacy protection.  At first glance, this appears to provide the potential to create burdensome regulations on cloud providers and their clients; however, cloud computing vendors have been able to flourish despite being required to adhere to different privacy laws in each state.  For example, at least 46 states, including the District of Columbia, Guam, Puerto Rico, and the Virgin Islands have data breach notification statutes. 

According to a GigaOM's article about Gartner's Forecast Overview: Public Cloud Services, Worldwide, 2011-2016, 4Q12 Update that was released earlier this year, "the U.S. is predicted to remain number one in overall cloud services deployment-by a wide margin-into 2016."  Therefore, despite almost every state in the U.S. enacting their own data breach notification statutes (whose provisions may vary widely state by state) cloud computing providers have still been able to offer to clients compliant cost effective solutions.

While the FTC's recent updates to the Children's Online Privacy Protection Act provide our children more privacy protections, state attorney generals along with state officials or agencies may be in a better position to protect the digital privacy of our children.  For example, while multiple EU data protection authorities are pursuing enforcement actions against Google because of its March 1, 2012 privacy policy change; so far the FTC has declined to do so. 

In contrast, the National Association of Attorney Generals sent a letter (signed by 36 state attorney generals) in 2012 expressing their concern about Google's privacy policy change. Last month, 23 state attorney generals signed onto a follow up letter that stated, "[w]e are still greatly concerned about the way Google collects consumer information" and "[w]e also think more needs to be done to enable consumers to review and delete data that has been collected about them from specific Google products."    

In addition to the actions spearheaded by the National Association of Attorney Generals, California's Attorney General Kamala Harris has been active regarding protecting those who utilize mobile apps.  Her office's recent report on mobile apps "provides guidance on developing strong privacy practices."  Attorney General Harris also created the Privacy Enforcement and Protection Unit to enforce federal and state privacy laws.  Other states, such as Massachusetts, have introduced legislation (H 331) that would ban cloud computing service providers who contract with K-12 schools from processing student data for commercial purposes.

Even though some state attorney generals and state lawmakers around the country are working to protect the digital privacy of our children, more tools are needed to ensure that our children are not exploited.  The FACE Act's introduction is important because it demonstrates that legislators realize that enacting stronger digital privacy laws is not only best for society, but that it will resonate with voters on election day.  

While it may take several legislative sessions for the FACE Act to move forward due to the acrimony on Capitol Hill, it demonstrates that lawmakers still believe we have an expectation of privacy in the Digital Age.  It would not surprise me if the FACE Act's introduction encourages state lawmakers to introduce similar bills in their respective legislatures around the country.  Therefore, it is imperative that the cloud computing industry work with stakeholders to ensure that our children's personal digital data is not utilized for commercial purposes. 

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.