I was recently contacted by a reporter about the New Hampshire ballot seflie law court case and unfortunately I was not able to get back to the reporter before the article's deadline. I first recall speaking with the media in 2012 about ballot selfies and at that time it was an activity that seemed ready to dramatically increase.
During the past several years, ballot selfie legal issues have picked up steam because some states have enacted laws focused on banning the practice. Laws and regulations that ban videos/photos during certain court proceedings and in polling places were enacted due to legitimate personal safety and privacy concerns. While I am a huge proponent of the First Amendment and frown on undue burdens that limit on speech rights, I am also a believer in strong privacy protections.
Once one is inside the polling area, they should feel confident that their decision to vote will not be broadcast to the public. In 2012, I told ABC News, "[p]eople should feel free to exercise their constitutional right to vote without fear that their votes may be captured and posted online for the entire world to see...Therefore, it is good public policy to restrict the use of cameras and/or video in a public polling area." While many state laws limiting photos/videos in polling places were enacted well before selfies become in vogue, these laws are generally technology neutral and apply to all still photos/video recordings.
I am sure we can find a solution that would allow people to prove to others (online and in the real world) whom they voted for without encroaching on the personal privacy and safety of other voters. I don't believe it would make good public policy to allow for the widespread use of cameras in a polling place because the rise of facial recognition and other biometric technologies raises serious personal privacy and public safety concerns. For example, if polling places started to allow for unfettered taping inside a polling station, the entire world may know whom you voted for based upon any stickers or candidate material you are holding before/after your vote.
Several years ago, a Deputy Sheriff in Hampton Virginia was fired along with several colleagues for "liking" a Facebook page of a political candidate (who was running against his boss and eventually lost). A federal appeals court ultimately ruled that a "Facebook Like" is constitutionally protected free speech; however, this did not change the fact that the Facebook Like dramatically changed the professional careers (and personal lives) of those who were fired for exercising their free speech rights.
In general, I don't recommend posting one's personal ballot online or discussing whom one voted for regardless of the law. Potential employers, marketers, insurers, data brokers, governments, etc... are watching and your vote/political leanings may negatively penalize your career and/or personal life. People should have the right to post whom they voted for online; however, we may need to think of a creative mechanism to allow for ballot selfies while at the same time protect the personal privacy and safety of others in the voting area.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, August 29, 2015
Friday, August 28, 2015
FTC Announces PrivacyCon Symposium
Earlier today, I received notification from the FTC announcing that on January 14, 2016 it will hold an event called PrivacyCon. According the FTC's website, the conference is designed "to bring together a diverse group of stakeholders, including whitehat researchers, academics, industry representatives, consumer advocates, academics, and a range of government regulators, to discuss the latest research and trends related to consumer privacy and data security."
The FTC has done some great work in privacy and cybersecurity and just like previous events, this event will bring together some of the world's most knowledgeable experts in the field. FTC Chairwoman Ramirez published an excellent op-ed earlier today about the need for this symposium. In her piece, she stated, "[p]olicymakers need to ensure that privacy is respected while innovation flourishes, and technology academics and researchers are crucial to hitting that sweet spot."
Previous FTC symposiums I have attended were well worth my time so if you are interested in learning about some of the most cutting edge regulatory issues in privacy and cybersecurity this event is a must.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
The FTC has done some great work in privacy and cybersecurity and just like previous events, this event will bring together some of the world's most knowledgeable experts in the field. FTC Chairwoman Ramirez published an excellent op-ed earlier today about the need for this symposium. In her piece, she stated, "[p]olicymakers need to ensure that privacy is respected while innovation flourishes, and technology academics and researchers are crucial to hitting that sweet spot."
Previous FTC symposiums I have attended were well worth my time so if you are interested in learning about some of the most cutting edge regulatory issues in privacy and cybersecurity this event is a must.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Google Refuses To Acknowledge The Law In Response To European Antitrust Complaint
Earlier this year, the European Commission (EC) sent a Statement of Objections (formal complaint) to Google for violating European antitrust (competition) laws. In particular, the EC alleges Google “has abused its dominant position in the markets for general internet search services in the European Economic Area (EEA) by systematically favouring its own comparison shopping product in its general search results pages. The Commission's preliminary view is that such conduct infringes EU antitrust rules because it stifles competition and harms consumers.”
Yesterday, Google responded to the EC's complaint with a 100 plus page defiant response and blog post. Interestingly, Google did not request a hearing on the matter and this tactic has provided credibility to Google's opponents' claims that if Google is confident that its legal position is correct as a matter of law it would request a hearing to defend itself. A spokesman for the EC told Bloomberg News that "[i]t's common for companies to ask for an oral hearing but it doesn't happen all the time".
In my experience, guilty parties generally hide behind written submissions and avoid direct confrontation with their accusers. According to Bloomberg News, "[h]earings can make a difference. Thirteen of the world's biggest banks succeeded at a face-to-face confrontation last year to unsettle an EU case into the credit-default swaps market...No fines have been issued in that case." Therefore, Google's refusal to face the EC in an oral hearing indicates to me that it believes it has violated European competition law.
Google's cavalier behavior over the years in regards to competition, privacy, and accepting illegal ads clearly demonstrates that it believes its above the law. Since the EC opened its antitrust investigation into Google, the company has paid hundreds of millions of dollars in fines and settlements due to illegal behavior. In each of these situations, Google has dragged its heels when it was caught intentionally misleading regulators, and/or consumers, and/or the media.
In 2011, Google paid a $500 million fine for knowingly accepting illegal advertisements from Canadian pharmacies. Subsequently, it paid multiple million dollar fines in the United States and in Europe for privacy violations in connection with its Street View data collection project, its Buzz social network, its 2012 privacy policy change, and the Safari hack incident.
Illegally abusing market position in Internet search (and/or other areas) is intertwined with data collection, usage, and privacy issues because in order to receive the most "relevant" search results to a search query a search engine must be able to access and process voluminous amounts of data very quickly. For years, 90% to 96% of Google’s revenue has come from advertising which means it is dependent upon being able to obtain massive amounts of personal information at a low cost to feed its behavioral advertising machine.
Countries have different legal criteria when determining whether a company has violated antitrust laws or if a potential merger will create an anti-competitive market. Europe has a long history in regulating anti-competitive markets. Since Roman times, the continent has regulated commerce to ensure competition and fair play. The EC is not targeting Google out of nationalistic fervor to boost EU based companies. Google is being targeted because it is clearly utilizing its dominant position to violate antitrust laws.
The EC has actively enforced its competition laws for years. Last year, a $1.44 billion dollar fine against Intel was upheld for anti-competitive behavior after at least a fiver year plus fight. In 2013, Microsoft was fined $731 million dollars for not adhering to its previous antitrust agreements. So, why does Google think they are are above the principles that have governed European markets for more than 2000 years?
My hope is that the EC utilizes all of the legal and regulatory tools at its disposal to ensure that Google and other companies that violate EC competition and privacy laws are held accountable. Internet users around the globe are harmed when companies such as Google violate antitrust laws.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Yesterday, Google responded to the EC's complaint with a 100 plus page defiant response and blog post. Interestingly, Google did not request a hearing on the matter and this tactic has provided credibility to Google's opponents' claims that if Google is confident that its legal position is correct as a matter of law it would request a hearing to defend itself. A spokesman for the EC told Bloomberg News that "[i]t's common for companies to ask for an oral hearing but it doesn't happen all the time".
In my experience, guilty parties generally hide behind written submissions and avoid direct confrontation with their accusers. According to Bloomberg News, "[h]earings can make a difference. Thirteen of the world's biggest banks succeeded at a face-to-face confrontation last year to unsettle an EU case into the credit-default swaps market...No fines have been issued in that case." Therefore, Google's refusal to face the EC in an oral hearing indicates to me that it believes it has violated European competition law.
Google's cavalier behavior over the years in regards to competition, privacy, and accepting illegal ads clearly demonstrates that it believes its above the law. Since the EC opened its antitrust investigation into Google, the company has paid hundreds of millions of dollars in fines and settlements due to illegal behavior. In each of these situations, Google has dragged its heels when it was caught intentionally misleading regulators, and/or consumers, and/or the media.
In 2011, Google paid a $500 million fine for knowingly accepting illegal advertisements from Canadian pharmacies. Subsequently, it paid multiple million dollar fines in the United States and in Europe for privacy violations in connection with its Street View data collection project, its Buzz social network, its 2012 privacy policy change, and the Safari hack incident.
Illegally abusing market position in Internet search (and/or other areas) is intertwined with data collection, usage, and privacy issues because in order to receive the most "relevant" search results to a search query a search engine must be able to access and process voluminous amounts of data very quickly. For years, 90% to 96% of Google’s revenue has come from advertising which means it is dependent upon being able to obtain massive amounts of personal information at a low cost to feed its behavioral advertising machine.
Countries have different legal criteria when determining whether a company has violated antitrust laws or if a potential merger will create an anti-competitive market. Europe has a long history in regulating anti-competitive markets. Since Roman times, the continent has regulated commerce to ensure competition and fair play. The EC is not targeting Google out of nationalistic fervor to boost EU based companies. Google is being targeted because it is clearly utilizing its dominant position to violate antitrust laws.
The EC has actively enforced its competition laws for years. Last year, a $1.44 billion dollar fine against Intel was upheld for anti-competitive behavior after at least a fiver year plus fight. In 2013, Microsoft was fined $731 million dollars for not adhering to its previous antitrust agreements. So, why does Google think they are are above the principles that have governed European markets for more than 2000 years?
My hope is that the EC utilizes all of the legal and regulatory tools at its disposal to ensure that Google and other companies that violate EC competition and privacy laws are held accountable. Internet users around the globe are harmed when companies such as Google violate antitrust laws.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, August 27, 2015
The Ashley Madison Hack, Cybersecurity, Privacy, and Legal Liability
Privacy and cyber security go hand and hand. If the platform you are
utilizing has weak and/or misleading privacy policies and/or weak cyber
security your safety is at risk. The ongoing issues related to the Ashley Madison hack (and Adult Friend Finder) should be a wake
call to everyone who accesses the Internet and digital services.
While this latest hack along with previous major data breaches is very concerning, I find it very troubling that Ashely Madison intentionally misled clients about its alleged "Delete" service. For $19, its users were intentionally misled that their personal information would be removed from Ashely Madison's records. Obviously this was not the case. Therefore, from a legal perspective, those who paid $19 to have their personal data deleted but didn't receive what was promised to them may be in the greatest position to win damages.
Even though Ashely Madison is based in Canada, the U.S. FTC may get involved since the company did business in the United States. Since a U.S. federal appeals court recently affirmed that the FTC has the power to regulate cyber security it would not surprise me if the FTC gets involved due to Ashley Madison's alleged weak cyber security and/or because it misled their clients about its so called "Delete" service.
The bottom line is that Ashely Madison faces tens of millions (or more) of dollars in potential legal liability either from class action lawsuits and/or regulators. While this situation may take years to sort out, the lesson for all is to be careful what you post online and what digital platforms you trust.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
While this latest hack along with previous major data breaches is very concerning, I find it very troubling that Ashely Madison intentionally misled clients about its alleged "Delete" service. For $19, its users were intentionally misled that their personal information would be removed from Ashely Madison's records. Obviously this was not the case. Therefore, from a legal perspective, those who paid $19 to have their personal data deleted but didn't receive what was promised to them may be in the greatest position to win damages.
Even though Ashely Madison is based in Canada, the U.S. FTC may get involved since the company did business in the United States. Since a U.S. federal appeals court recently affirmed that the FTC has the power to regulate cyber security it would not surprise me if the FTC gets involved due to Ashley Madison's alleged weak cyber security and/or because it misled their clients about its so called "Delete" service.
The bottom line is that Ashely Madison faces tens of millions (or more) of dollars in potential legal liability either from class action lawsuits and/or regulators. While this situation may take years to sort out, the lesson for all is to be careful what you post online and what digital platforms you trust.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, August 26, 2015
Will The FTC Investigate the NFL's Russell Wilson for Tweet?
Social Media may be a very productive avenue to market your brand and get the word out about an advertising campaign. Utilizing celebrities and professional athletes who have a well developed social media presence may be a successful method to create buzz about a new product or service.
While engaging celebrity endorsers it is imperative that they (and their agents/agency/sponsors) are educated about the appropriate regulations that need to be followed to ensure legal compliance. I have written about the FTC advertising regulations multiple times, here, and here for example, and have also provided official comments to the FTC about areas for further review. Earlier this year, the FTC provided more guidance regarding its online advertising regulations that advertisers and their paid endorsers must follow.
For several years, major companies such as Lord & Taylor along with celebrities such as Pharrell Williams, and Kim Kardashian have had to face regulatory scrutiny due to their social media campaigns/endorsements. While this scrutiny has been limited, it would not surprise me if the FTC decides to make an example out of someone. Earlier today, the Seattle Seahawks quarterback Russell Wilson tweeted, "I believe @Recovery_Water helped prevent me from getting a concussion based on a bad hit! #NanoBubbles"
At first glance, the Tweet seems harmless. However, Wilson didn't acknowledge in the Tweet that he is an investor in the product. I don't know if Wilson is a paid endorser or what type of compensation if any he may receive(d) for the Tweet and other online activity regarding the alleged (de facto) endorsement. While it is too soon to speculate on whether the FTC may become involved it demonstrates that brands and professional athletes must be careful about their online activity.
Copyright 2015 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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