California Passes Non-Disparagement Consumer Contract Clause Ban

California's AB 2365 which prohibits businesses and service professionals from contractually silencing customers who may want to complain about their experiences has been passed by California's legislature and is awaiting the approval of Gov. Brown.  In layman's terms, the legislation generally prohibits a business from inserting into its adhesion contracts and terms of service language that requires a consumer to waive their right to publicly comment about their customer experience on websites such as Yelp, Ripoff Report, etc...

At first glance, this bill may sound like the government passing legislation that is looking for a problem.  Unfortunately, this legislation is needed because some dishonest retailers, service professionals, etc.... are including in their agreements clauses that ban their customers/clients from truthfully telling the world about their negative experiences.  

Earlier this year,  I discussed the Kleargear.com case.  In short, the retailer failed to deliver on its promise and the customer complained online about it on Ripoff Report.  Sometime after the customer complaint was posted, Kleargear.com inserted these clauses into their terms of service:

"In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees. 

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid."

Kleargear.com sent the customer a bill for $3,500 for allegedly violating the above terms.  After the customer refused to pay, Kleargear.com reported the matter to credit rating agencies, claimed the terms were in effect at the time of the customer interaction and this negatively affected the customer's credit report.  In response, the customer sued Kleargear.com and was awarded more than $300,000 in compensatory and punitive damages. 

For those who may not believe this is a growing trend, another recent example demonstrates the need for this legislation.  The New York Post earlier this month exposed a hotel that inserted into its agreements the ability to fine its guests $500 for negative online reviews.  I am also aware of multiple non-publicized similar matters where people have publicly complained about a service provider and when the business became aware of the complaint they threatened the reviewer with a lawsuit. 

In America, we have fought multiple wars for the right to complain freely about bad politicians, governments, etc... so I believe we should have the right to also complain freely about bad private sector service.  While I wish this bill wasn't needed, the insertion of non-disparagement clauses into legally binding agreements appears to be a growing trend.  From a public policy perspective, since we live in a free and democratic society it makes sense to protect consumers from repugnant restrictions on publicizing personal opinions.    

Copyright 2014 by Shear Law, LLC All rights reserved.

California Bill To Regulate Student Social Media Monitoring Services

California's legislation that would regulate social media monitoring of secondary students is one step away from becoming law.  AB-1442 is now on the governor's desk and awaiting his signature or veto.  The bill appears to compliment SB 1349 that protects the social media privacy of students.  While I believe this bill is a good first step, it should be expanded to include post-secondary students.

AB-1442 is greatly needed because companies are approaching secondary and post-secondary schools to social media monitor students.  In secondary schools, these companies generally claim their services help prevent bullying and youth suicide.  In post-secondary schools, these companies generally claim their services help protect the brand of the school and "educate" students. 

Several years ago, social media consultants/their companies focused on monitoring student-athletes in colleges.  They approached school athletic departments and told them to require student-athletes to provide access to their personal social media accounts via disclosing/authenticating user names/passwords and/or installing cyber monitoring software via apps and/or other means.  For approximately $10,000 per year, these services claimed they would help protect a school's athletic brand by monitoring their student-athletes social media activity.  

Since this issue first gained national attention, dozens of states and Congress have introduced and/or enacted legislation that protects students, schools, and taxpayers from these troubling social media consultants and their services.  Our children need to be protected from some of these companies because the founders of these services may lie about the legality of their services and/or intentionally misrepresent their background/experience.  Some of these companies have also been caught re-purposing personal student social media posts for advertising purposes. 

For years, I have warned about the dangers of wide spread social media monitoring of students.  These services may lead to tens of millions of dollars in legal liability for schools along with undemocratic censorship (either self-imposed or government created) by stifling our students' free thought process.  When I read George Orwell's 1984 in high school, I never imagined that U.S. schools would consider implementing these troubling monitoring services.

Absent stronger laws to regulate social media monitoring of students, I am afraid we may become Airstrip One (the location of 1984) and our children will not experience the same privacy protections that previous generations enjoyed.

Shouldn't our children be able to learn from their digital mistakes without fear that they will follow them for the rest of their lives?  Instead of spending money to social media monitor our students why not instead use the same resources to educate them?  Have some school districts forgotten about the phrase, "give a man a fish and you feed him for a day; teach a man how to fish and you feed him for a lifetime?  

Carpe Diem. O Captain My Captain fight for liberty, privacy, and freedom. 

Copyright 2014 by Shear Law, LLC All rights reserved.

Google's Plan To Offer Accounts to Kids Under 13 May Harm Their Privacy

Recently, multiple media outlets reported that Google plans to offer accounts for their wide array of services to children under 13 years of age.  While the details regarding this alleged plan have not been publicized, it has already created a lot of concern with multiple privacy advocates.  In response to these reports, the Center For Digital Democracy stated, " [a]nyone who knows how Google really conducts its business should be alarmed about its plans to make money off of kids."

There are many unanswered questions about this proposal.  For example, how does Google plan on implementing this new offering?  How will these accounts become compliant with the Children's Online Privacy Protection Act (COPPA)?  Will accounts for children under the age of 13 (the age range that COPPA covers) be governed by a new Privacy Policy that actually protects the personal privacy of children rather than the standard Google consumer privacy policy that is in reality a data use policy? 

Will the default privacy option for children be no data collection of personally identifiable information (i.e. opt in required instead of opt-out)?  If a child who is under 13 years old keeps his Google account past the age of 13 will the default be for Google to automatically delete the data it has collected (i.e. opt in required to keep the pre-13 data instead of opt-out)? 

Will informed consent be via a small check box like the one parodied in this South Park HUMANCENiPAD episode that fictitiously enabled Apple to do whatever it wanted to its users; or, will parents be provided clear and concise warnings about how their children's personal information may be utilized?  The documentary Terms and Conditions May Apply thoroughly discussed some of the troubling issues inherent with Google's terms and privacy policy.

Why is Google really opening up its services to those under 13 and allegedly willing to jump through extra compliance hurdles to comply with COPPA?  According to The Tech Blog of the Mercury News, "[w]hile YouTube is profitable, it may not make as much money as some analysts thought, according to an article in The Information blog (subscription required)." 

According to the Center For Digital Democracy, "Google has a problem.  In order to continue to be the global digital marketing leader, it has to expand its monetizing (the industry term for making cash off us and our data) practices.  Kids are the last nearly untouched market, since COPPA's opt-in and informed parental consent privacy requirements are a serious problem for Google and others who really don't want to respect our privacy online.  Kids (so called "Generation Z" by marketers) are a very lucrative market, spending and influencing billions of dollars each year, including for games, apps and other products.  Companies want to "brand" early and develop lifelong loyalty and, of course, ongoing spending."

Can Google, the most profitable advertising company in the history of the world be trusted to protect our kids' personal and most sensitive information?  Since a company's past actions are generally an excellent indicator of future behavior it would be prudent to examine some of Google's recent history regarding online privacy.  

In 2011, the FTC's groundbreaking agreement with Google banned the company from making future privacy misrepresentations because its Buzz social network had deceptive privacy practices.  Unfortunately for users, Google violated this agreement soon after the ink was dry because in 2012 Google paid a $22.5 million dollar fine for misleading users about its privacy practices.  In 2013, Google entered into a multi-million dollar privacy violation settlement regarding its Street View Project's data collection practices.  Earlier this year, Education Week caught Google scanning student emails in its Google Apps For Education platform for advertising purposes despite denying the practice for years.          

Time Magazine's Jacob Davidson made a very keen observation about why Google wants to offer its services to kids under 13 when he stated, "[a]nother reason for kid-centric services could be a desire by Google to break into the lucrative education market. The company’s Chromebooks are low-cost laptops that might be attractive to schools, but the products are entirely based around Google services." 

If Google officially offers its services to children under 13 years of age, it is almost certain that Facebook, Instagram, Yahoo, etc... will follow.  My concern is that I don't believe most people regardless of their age truly understand how these companies are repurposing the information they are collecting. 

Do Google users know that their search history is being tied to the videos they watch on YouTube and the content in their Gmail accounts and this information is being utilized for behavioral advertising and other non-transparent purposes?  Do Facebook account holders realize that every "Like" and status update is being sent directly to data brokers and this information may be combined with offline behavior which may negatively affect credit scores which may lead to less favorable home and/or auto loan rates?  Do people know that some companies may utilize their personal data for scientific experiments that may emotionally harm them? 

    

In general, a teenager needs to be sixteen before obtaining a restricted drivers license, minors may void contracts entered into before the age of majority (which is usually 18), and in almost every jurisdiction young people may not legally purchase and/or imbibe alcoholic beverages until they become twenty one years old.  These laws are in place because as a society we have deemed them important to reach certain public policy goals. 

Since children are increasingly utilizing digital platforms for not just leisure activities but also for educational purposes why should they be required to waive their personal privacy rights to utilize a particular service?  Why shouldn't digital providers be required to change their privacy policies and data collection practices if they want to cater to children?

Google creates some exciting products and services that may be beneficial to kids.  However, until it changes its troubling privacy policy and demonstrates it won't act "evil" when it comes to safeguarding our children's personal information I don't believe it can be trusted to protect their privacy.  I hope I am wrong but as the famous philosopher George Santayana stated, "those who cannot learn from history are doomed to repeat it".

Copyright 2014 by Shear Law, LLC All rights reserved.

Online Bullies Target Robin Williams Daugther

I grew up watching Robin Williams and loved his work.  When I ran into him in New York City late one night with a friend of mine about 11 years ago he was gracious and funny and even said, "nano nano".  My condolences go out to his family. 

It saddened me to read in the New York Daily News that Robin Williams daughter Zelda Williams was tormented and harassed online for the sole reason she is Robin Williams daughter.  Due to disgusting and hateful things people said about her and/or her father, she stated that she will not utilize her public digital accounts for the near future.  While Twitter "vows to improve" it policies after this incident, what does this really mean?

Ms. Williams just shockingly lost her famous father and within 24 hours was hounded so relentlessly online that it led her to stop posting publicly.  What is wrong with our society?  Ms. Williams has tried to accommodate her father's fans by sharing some intimate details of her personal life with him and is instead criticized for her actions.  Instead of just thanking Ms. Williams for sharing some private moments with her dad and/or sending her condolences some people are tormenting her.          

In the Digital Age, I still believe that "sticks and stones may break my bones but names can never hurt me" applies.  While it may difficult to sometimes see the value of this adage it is more important than ever.  The United States was built upon the foundation of free speech and what may be considered vitriol by one may be nothing more than a personal political opinion.  Even though I find many anonymous online comments to be worthless, I still believe as our founding fathers did that one should have the right to publicly voice their opinions anonymously.      

Copyright 2014 by Shear Law, LLC All rights reserved.

Foursquare App Update Harms User Privacy

According to the Wall Street Journal, as of 8/6/2014, "users who download or update the Foursquare app will automatically let the company track their GPS coordinates any time their phone is powered on. Foursquare previously required users to give the app permission to turn on location-tracking.....Foursquare’s app goes beyond location-tracking features offered by competitors. Social apps like Twitter collect GPS coordinates to give users the option of sharing their location with friends, but don’t collect this data when the app is off."

To justify Foursquare's privacy changes, founder Dennis Crowley stated "more users will be willing to share their location because they’re getting a more valuable service in return."  Has Mr. Crowley read about the NSA Edward Snowden leaks?  According to Wired, "[t]he data you share with Foursquare today could conceivably end up in the hands of the NSA, hackers, or private data brokers tomorrow."

The bottom line is that if you value your personal privacy and safety I would not recommend using the "new and improved" Foursquare.  Do you want to share more personal information with data brokers, insurance companies, colleges, landlords, and future employers who may discriminate against you based upon your Foursquare usage?  If so, Foursquare may be for you. 

Copyright 2014 by Shear Law, LLC All rights reserved.

Union Street Guest House Social Media Wedding Agreement Failure

Many companies still don't understand  social media and the viral nature of the Internet.  The latest corporate social media failure appears to have been brought to you by the hotel Union Street Guest House in Hudson, New York.

According to the New York Post, the Union Street Guest House allegedly inserts into its wedding agreements the phrase:  “If you have booked the inn for a wedding or other type of event . . . and given us a deposit of any kind . . . there will be a $500 fine that will be deducted from your deposit for every negative review . . . placed on any internet site by anyone in your party.”

This is an outrageous clause for any hotel or business to put into their agreements.  How is this clause being enforced?  How does Union Street Guest House know if a negative poster is from your wedding/event party?  What if an imposter makes multiple fake posts to cause the person who booked the party to incur multiple $500 fines?  Does Union Street Guest House troll Yelp, Facebook, Twitter and try to match up their hotel guests with their social media accounts?

This situation reminds me of the Kleargear.com matter. Kleargear.com fined a customer $3,500 for a what appears to be a clearly deserved negative review.  The company claimed that its terms of service allowed it to fine customers under its disparagement clause section.  The customer sued and won $306,000.

The bottom line is that companies should not be in the business of trying to silence their customers via required non-disparagement clauses in their agreements.  This is a very troubling trend that I believe will increase in the near future.  Within minutes of the New York Post publishing its article about this matter, the Internet made an example out of Union Street Guest House.  In less than 24 hours, the hotel received hundreds of negative reviews and then changed its policy. 

Copyright 2014 by Shear Law, LLC All rights reserved.