In general, the government should be required to obtain a warrant in order to access the private password protected digital accounts of its citizens. Unfortunately, due to an outdated law, the Electronic Communications Privacy Act of 1986 (ECPA) this is not the case.
The ubiquitous nature of online communications has made updating the law to account for how technology has changed over the past 30 years a necessity to ensure that our 4th amendment rights in the virtual world equal our 4th amendment rights in the physical world. A Congressional hearing on the Email Privacy Act will be held this week to try to update the woefully out of date ECPA statute. Multiple efforts over the years have failed so I am cautiously optimistic that this effort and others such as the LEADS Act which complement this bill will be passed this term.
The Email Privacy Act has more than 300 cosponsors in the House of Representatives and it would close a glaring loophole in ECPA which enables the government to utilize a subpoena instead of a warrant to require digital service providers to provide their customer's digital communications if they are greater than 180 days old. When ECPA was enacted in 1986, this loophole wasn't concerning because our technology wasn't such that we could hold years of personal communications in an email account stored in the cloud around the world.
According to a recent poll by Vox Populi, 77% of 1000 registered voters said "a warrant should be required to access emails, photos and other private communications stored online." This super majority demonstrates the importance of this issue and that Congress should listen to the voters to rectify this glaring hole in our 4th amendment protections.
In order for the Email Privacy Act to became law, it is imperative to contact your local members of Congress to tell them about the importance of this issue. Absent public support, Congress doesn't act. Therefore, if you believe that our 4th amendment protections should extend to our digital activities please take a stand and urge your representatives and senators to support the much needed Email Privacy Act.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.
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Monday, November 30, 2015
Tuesday, November 24, 2015
Towson University Locker Room Recording Scandal May Cost Millions
The Washington Post, has reported that a Towson University diving coach was indicted on criminal charges by a grand jury for allegedly utilizing a cell phone to tape record student-athletes inside of a women's locker room on campus. According to Baltimore County Circuit records, Maureen Mead who is married to Pat Mead who is the head coach of the women's diving team has been charged with Interception of Communication, Peeping Tom, and Altering Physical Evidence.
These are serious crimes and its possible that after the facts have been uncovered that federal charges may be forthcoming. It wouldn't surprise me if Towson University is sued for millions of dollars by the student-athletes who were recorded. Last year, Johns Hopkins Hospital settled a lawsuit for $190 million dollars where a doctor had illegally tape recorded his patients.
How many other times did Maureen Mead tape record student-athletes in the locker room? Why were the recordings created in the first place? How were these recordings re-purposed? There are a lot of questions that still need to be answered. The bottom line is that it may be prudent for Towson University to set aside several million dollars to investigate and resolve this matter.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, November 17, 2015
Emoji (and the law): The Oxford Dictionary Word of The Year
The Oxford Dictionaries have chosen "emoji" as the word of the year. According to the Oxford University Press, the use of the word "emoji" has increased "hugely" this year so it was natural for it to become the word of the year.
An emoji or emoticon is a digital icon or image that may be used during electronic interactions to convey an idea or feeling. Utilizing emojis in text messages may be useful because they express a feeling or idea more quickly than a group of words.
Emojis or emoticons have been slowly showing up in court over the past couple of years. There have been some cases where emojis have been introduced into evidence during trial. As more people utilize these images to convey thoughts or ideas the more these issues will need to be addressed by the judicial system.
The bottom line is that before sending an emoji in a message or posting it online make sure you understand the legal ramifications.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, November 10, 2015
Belgian Court Says Facebook Must Stop Tracking Non-Users
In a very promising development, a Belgian court has ruled that Facebook may no longer collect information about non-users. According to The New York Times, the court ruled that Facebook may no longer collect and store digital information from Belgians who do not have a Facebook account due to a lack of consent.
Facebook will appeal the ruling because it wants the right to track everyone on the Internet for monetary purposes. However, if Facebook loses and fails to abide by the court's decision it may be fined up to $270,000 per day.
I do not trust Facebook with my personal information. Even though I have a personal Facebook account, my profile photo shows my "favorite social media titan," and I have intentionally included incorrect personal information about myself. I do not utilize the platform to share my personal thoughts or activities because the data is sent to data brokers. Furthermore, Facebook is not transparent regarding how personal user information is utilized by its business partners.
Its too early to speculate on whether Facebook will ultimately win the case; however, my hope is that other countries around the world including the U.S. require Facebook, Google, etc... to become more transparent about their data collection and utilization practices. Those who do not use Facebook have an expectation that it will not destroy non-users' privacy. We may soon find out if the Belgian judiciary agrees.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.
Facebook will appeal the ruling because it wants the right to track everyone on the Internet for monetary purposes. However, if Facebook loses and fails to abide by the court's decision it may be fined up to $270,000 per day.
I do not trust Facebook with my personal information. Even though I have a personal Facebook account, my profile photo shows my "favorite social media titan," and I have intentionally included incorrect personal information about myself. I do not utilize the platform to share my personal thoughts or activities because the data is sent to data brokers. Furthermore, Facebook is not transparent regarding how personal user information is utilized by its business partners.
Its too early to speculate on whether Facebook will ultimately win the case; however, my hope is that other countries around the world including the U.S. require Facebook, Google, etc... to become more transparent about their data collection and utilization practices. Those who do not use Facebook have an expectation that it will not destroy non-users' privacy. We may soon find out if the Belgian judiciary agrees.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.
Monday, November 9, 2015
Supreme Court Declines Cell Phone Privacy Case
Earlier today, the Supreme Court declined to hear a case regarding whether law enforcement needs a warrant to access the location information of cell phone users. While the decision to turn down the case may disappoint some privacy advocates it is not surprising.
Earlier this year in Davis v. U.S., the 11th Circuit Court of Appeals determined that it was not necessary for the police to obtain a warrant before accessing cell phone location records. The defendant was convicted of armed robbery based in part by his cell phone location data. The appeals court opinion compared cell phone location data to security camera surveillance images (page 27 of the opinion) which is an interesting analogy.
In general, absent exigent circumstances (legal jargon for an emergency), a warrant should be required to access the content and meta data associated with one's digital devices. In the physical world, law enforcement is generally required to obtain a warrant to search one's home or car. A home or car may contain physical information (i.e. clothing, hard copy paper records, etc...) that may indicate an investigatory target's location history or other relevant data.
Since a warrant is generally required for physical world evidence, a warrant should generally be required for digital world evidence including location information, meta data, etc...I am hoping that the court declined this matter because it is waiting for a test case that will more easily enable them to strengthen our privacy laws.
This denial of cert demonstrates that it is imperative for the privacy community to increase its efforts to better educate the judiciary, state and federal lawmakers, and other stakeholders about digital privacy issues.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.
Earlier this year in Davis v. U.S., the 11th Circuit Court of Appeals determined that it was not necessary for the police to obtain a warrant before accessing cell phone location records. The defendant was convicted of armed robbery based in part by his cell phone location data. The appeals court opinion compared cell phone location data to security camera surveillance images (page 27 of the opinion) which is an interesting analogy.
In general, absent exigent circumstances (legal jargon for an emergency), a warrant should be required to access the content and meta data associated with one's digital devices. In the physical world, law enforcement is generally required to obtain a warrant to search one's home or car. A home or car may contain physical information (i.e. clothing, hard copy paper records, etc...) that may indicate an investigatory target's location history or other relevant data.
Since a warrant is generally required for physical world evidence, a warrant should generally be required for digital world evidence including location information, meta data, etc...I am hoping that the court declined this matter because it is waiting for a test case that will more easily enable them to strengthen our privacy laws.
This denial of cert demonstrates that it is imperative for the privacy community to increase its efforts to better educate the judiciary, state and federal lawmakers, and other stakeholders about digital privacy issues.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.
Sunday, November 8, 2015
Stevenson University Caught Requiring Access To Private Student Facebook Accounts
Playing college athletics is a privilege and not a right. However, student-athletes do not lose their civil rights when they enter the locker room. In an insightful and troubling ESPN Outside the Lines Report, it was uncovered that a now former student-athlete at Stevenson University was forced to quit her school's athletic team because she refused to abide by an illegal and discriminatory social media policy. The policy required the women's ice hockey student-athletes to provide their coaches access to their personal social media accounts.
Requiring students to provide coaches and administrators access to personal digital accounts is not just a privacy issue but also a personal safety, cyber security, and civil rights matter. Does a coach have a legal right to demand to see what political candidate a student-athlete supports? Does a college administrator have a legal right to see if a student-athlete likes a page that may indicate their sexual preference? Does a coach have a legal right to see all of your personal messages to your friends and family?
Maryland was the first state in 2012 to enact legislation to generally ban employers from demanding access to personal social media accounts and it was also the first state to introduce legislation to protect students from being required to turn over the same information to schools. While Maryland was the first state to introduce legislation to protect personal student social media accounts it wasn't able to enact a state law on the matter until earlier this year when it became the 13th state to do so.
While the student-athlete who was profiled by ESPN was harmed by Stevenson University's clearly unethical and illegal social media policy, it doesn't appear she has a claim under Maryland's new student social media privacy law that went into effect on June 1, 2015. However, she may have a claim under the 2012 employee social media privacy law if she worked in some type of capacity for the university. On the federal level, there may be potential Title IX, federal computer crime law (i.e. the Stored Communications Act), Office of Civil Rights claims, etc... If Stevenson University's illegal social media policy was in effect after June 1, 2015 the school may have additional legal challenges on the horizon.
The bar to settle this type of matter was set at $70,000 per student last year when a Minnesota student received this amount to settle a similar situation. Since the student profiled in the ESPN piece appears to have been clearly harmed by her university's illegal policy her damages may be significantly higher than $70,000. Every student who was told they must provide access to their personal social media account to participate in a school sponsored activity may also be entitled to at least $70,000.
There appears to be approximately 24 students on the Stevenson University Women's ice hockey team this year. If 24 students participated on last year's team and they were required to provide access to their personal social media accounts, Stevenson University may be on the hook to compensate each student-athlete at least $70,000. For example, 24*$70,000=$1,680,000 in potential damages just for last year's team.
If last year's social media policy was in effect this year that could cause additional trouble for Stevenson. While the new Maryland law caps state damages at $1,000 per student plus reasonable attorney fees and court costs, this law doesn't affect potential damages under federal law. If the student-athletes band together and obtain joint legal representation they may be able to file a class action lawsuit and the total damages against the university could theoretically reach $2,000,000+.
Stevenson needs to become transparent about this matter and held accountable. How long has their illegal and discriminatory social media policy be in effect? How many students were required to abide by this policy? Did the policy just apply to female ice hockey players? If not, who else. These are just some of the many questions that Stevenson must answer.
The bottom line is that universities need to better understand the legal ramifications of their social media policies and engage those who actually understand best practices. The legal issues involved are very serious and trump the personal/university branding issues that many schools focus on.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.
Requiring students to provide coaches and administrators access to personal digital accounts is not just a privacy issue but also a personal safety, cyber security, and civil rights matter. Does a coach have a legal right to demand to see what political candidate a student-athlete supports? Does a college administrator have a legal right to see if a student-athlete likes a page that may indicate their sexual preference? Does a coach have a legal right to see all of your personal messages to your friends and family?
Maryland was the first state in 2012 to enact legislation to generally ban employers from demanding access to personal social media accounts and it was also the first state to introduce legislation to protect students from being required to turn over the same information to schools. While Maryland was the first state to introduce legislation to protect personal student social media accounts it wasn't able to enact a state law on the matter until earlier this year when it became the 13th state to do so.
While the student-athlete who was profiled by ESPN was harmed by Stevenson University's clearly unethical and illegal social media policy, it doesn't appear she has a claim under Maryland's new student social media privacy law that went into effect on June 1, 2015. However, she may have a claim under the 2012 employee social media privacy law if she worked in some type of capacity for the university. On the federal level, there may be potential Title IX, federal computer crime law (i.e. the Stored Communications Act), Office of Civil Rights claims, etc... If Stevenson University's illegal social media policy was in effect after June 1, 2015 the school may have additional legal challenges on the horizon.
The bar to settle this type of matter was set at $70,000 per student last year when a Minnesota student received this amount to settle a similar situation. Since the student profiled in the ESPN piece appears to have been clearly harmed by her university's illegal policy her damages may be significantly higher than $70,000. Every student who was told they must provide access to their personal social media account to participate in a school sponsored activity may also be entitled to at least $70,000.
There appears to be approximately 24 students on the Stevenson University Women's ice hockey team this year. If 24 students participated on last year's team and they were required to provide access to their personal social media accounts, Stevenson University may be on the hook to compensate each student-athlete at least $70,000. For example, 24*$70,000=$1,680,000 in potential damages just for last year's team.
If last year's social media policy was in effect this year that could cause additional trouble for Stevenson. While the new Maryland law caps state damages at $1,000 per student plus reasonable attorney fees and court costs, this law doesn't affect potential damages under federal law. If the student-athletes band together and obtain joint legal representation they may be able to file a class action lawsuit and the total damages against the university could theoretically reach $2,000,000+.
Stevenson needs to become transparent about this matter and held accountable. How long has their illegal and discriminatory social media policy be in effect? How many students were required to abide by this policy? Did the policy just apply to female ice hockey players? If not, who else. These are just some of the many questions that Stevenson must answer.
The bottom line is that universities need to better understand the legal ramifications of their social media policies and engage those who actually understand best practices. The legal issues involved are very serious and trump the personal/university branding issues that many schools focus on.
Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.