In a positive development, President Obama has signed the Judicial Redress Act yesterday. The new law will enable citizens of some of our allies to sue the U.S. government for violating their personal privacy rights.
The bill passed with bipartisan support in both the U.S. House and Senate and signed by the President soon after he received the bill. The enactment of this piece of legislation was needed in order for the new U.S.-EU Privacy Shield Agreement to move forward in Europe.
The bottom line is that the enactment of the Judicial Redress Act extends some of the privacy rights our citizens have to the citizens of our allies and demonstrates that our country is serious about protecting the personal privacy of their citizens. This signals that the U.S. may be moving towards ensuring stronger digital privacy rights when it comes to matters that may affect international commerce.
Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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Thursday, February 25, 2016
NFL Star Files Twitter Lawsuit Against ESPN
According to The New York Post, New York Giants star Jason Pierre-Paul has filed a lawsuit against ESPN and one its reporters, Adam Schefter, for Tweeting a photo of his medical records. Last July 4th, Pierre-Paul was involved in a fireworks accident that severely damaged one of his hands and the incident created a feeding frenzy among the media to determine the extent of Pierre-Paul's injuries.
Under the Health Insurance Portability and Accountability Act (HIPAA), the hospital and its employees owed a duty of medical privacy to Pierre-Paul. The media is not a covered entity under HIPAA so it doesn't apply to ESPN or Schefter. It has been reported that the hospital that treated Pierre-Paul has already settled with him most likely because it had the most to lose if the matter went to trial since it was a covered entity under HIPAA.
While HIPAA doesn't cover ESPN/Adam Schefter's actions, Pierre-Paul may have an actionable claim under Florida state law or common law. If ESPN/Adam Schefter contacted me before posting Pierre-Paul's medical records on Twitter, I would have advised against Tweeting out the photo or posting it online on another platform due to potential legal liability. While its too soon to speculate on how Florida state law or common law may affect the outcome of this case, it should make people think long and hard before they post the medical records of others online without expressed written consent.
While HIPAA doesn't cover ESPN/Adam Schefter's actions, Pierre-Paul may have an actionable claim under Florida state law or common law. If ESPN/Adam Schefter contacted me before posting Pierre-Paul's medical records on Twitter, I would have advised against Tweeting out the photo or posting it online on another platform due to potential legal liability. While its too soon to speculate on how Florida state law or common law may affect the outcome of this case, it should make people think long and hard before they post the medical records of others online without expressed written consent.
I have previously written about ESPN's corporate social media policy that covers its reporters here and here. The bottom line is that professional sports teams, athletes, and those that work in the sports field need to become better educated about the legal implications of their actions whenever they utilize digital platforms. One wrong post or action/inaction that leads to a digital post may create millions of dollars in legal liability.
Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, February 24, 2016
Apple vs. the FBI: We Can Have Both Privacy And Security
Can we have both privacy and security? That is a question that has been popular since 9/11/2001. I believe we can have both. As someone who personally witnessed the terrorist attacks on The World Trade Center from a couple of blocks away (and became homeless because of them and eventually moved), I am fully well versed on these issues from the security side. As an attorney who focuses on technology and privacy issues and who has advocated for stronger personal privacy laws on the state and federal level, I also understand the inherent privacy issues.
To recap the latest privacy vs. security debate: the U.S. Justice Department is demanding that Apple help unlock an iPhone that was utilized by the San Bernardino terrorists who killed 14 people and injured 22 in 2015. Without getting too technical, the FBI has requested (there has been multiple requests/back and forth between the parties) that Apple create software or disable some security protections on an iPhone that would weaken its encryption to allow the FBI to ensure that it may access the contents on the device. According to The New York Times, the FBI has also requested that Apple assist it with unlocking at least 9 other iPhones.
Weakening encryption or creating back doors into our technology may sound like a good idea for this one case; however, there are and will be other cases where similar requests will be made to access information stored on electronic devices. If the FBI is provided a back door for this one case, security services from others countries will also demand one for their cases (there could be demands for access to phones belonging to government political opponents or to whistle blowers) as well. In addition, hackers may also utilize back doors which would harm the privacy and personal security of all of us.
I am in favor of law enforcement being able to access digital content when a valid warrant has been obtained. However, the legal process needs to be followed before content requested is turned over. In general, a major problem with our current legal process is that our digital laws are outdated. For example, the 1986 Electronic Communications Privacy Act which governs email access was created before we had smart phones and the Internet as we know it. The judiciary is stuck trying to interpret laws that are woefully out of date.
Congress must step up to fix this process. Bills such as the Email Privacy Act, and the Law Enforcement Access To Data Stored Abroad Act-LEADS need to be enacted because these bills demonstrate that government is willing to update our laws to better reflect how we utilize technology. Absent a legislative fix, private industry has a challenge when law enforcement makes certain demands which are more than just data requests. Should they comply absent trying to block these demands through the courts or should they fight law enforcement demands via a flawed legal process?
This case and others like it demonstrate the need for more dialogue on these issues and the enactment of legislation that provides clearer guidance on how to handle these issues. Technology is moving too fast to leave it solely up to the judiciary to try to interpret how laws enacted decades ago for a different time should apply in the Digital Age. Our personal privacy and national security demand that Congress and the White House work on a long term solution to these important privacy and security issues.
Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.
To recap the latest privacy vs. security debate: the U.S. Justice Department is demanding that Apple help unlock an iPhone that was utilized by the San Bernardino terrorists who killed 14 people and injured 22 in 2015. Without getting too technical, the FBI has requested (there has been multiple requests/back and forth between the parties) that Apple create software or disable some security protections on an iPhone that would weaken its encryption to allow the FBI to ensure that it may access the contents on the device. According to The New York Times, the FBI has also requested that Apple assist it with unlocking at least 9 other iPhones.
Weakening encryption or creating back doors into our technology may sound like a good idea for this one case; however, there are and will be other cases where similar requests will be made to access information stored on electronic devices. If the FBI is provided a back door for this one case, security services from others countries will also demand one for their cases (there could be demands for access to phones belonging to government political opponents or to whistle blowers) as well. In addition, hackers may also utilize back doors which would harm the privacy and personal security of all of us.
I am in favor of law enforcement being able to access digital content when a valid warrant has been obtained. However, the legal process needs to be followed before content requested is turned over. In general, a major problem with our current legal process is that our digital laws are outdated. For example, the 1986 Electronic Communications Privacy Act which governs email access was created before we had smart phones and the Internet as we know it. The judiciary is stuck trying to interpret laws that are woefully out of date.
Congress must step up to fix this process. Bills such as the Email Privacy Act, and the Law Enforcement Access To Data Stored Abroad Act-LEADS need to be enacted because these bills demonstrate that government is willing to update our laws to better reflect how we utilize technology. Absent a legislative fix, private industry has a challenge when law enforcement makes certain demands which are more than just data requests. Should they comply absent trying to block these demands through the courts or should they fight law enforcement demands via a flawed legal process?
This case and others like it demonstrate the need for more dialogue on these issues and the enactment of legislation that provides clearer guidance on how to handle these issues. Technology is moving too fast to leave it solely up to the judiciary to try to interpret how laws enacted decades ago for a different time should apply in the Digital Age. Our personal privacy and national security demand that Congress and the White House work on a long term solution to these important privacy and security issues.
Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.
Monday, February 22, 2016
Kurt Rambis, Twitter, Sports, and Social Media Reputation
The Kurt Rambis Twitter Fail has been blown way out of proportion by the media. Coach Rambis allegedly "liked" a female masturbation photo. Whether he intentionally "liked" it or it was "liked" by accident is up for debate. Unfortunately, in the Digital Age any non-puritanical digital activity may become a news story for those who hold high profile positions in the world of sports, entertainment, government, politics, business, etc....
When using a digital device, it is easy to accidentally "like" a Tweet or indicate a preference for a particular post when scrolling up or down on a smart phone. I have accidentally "liked" Tweets in the past and didn't realize it until reviewing my digital activity at a later date. It is entirely possible that Coach Rambis' Twitter account was hacked. Did the hackers also make Coach Rambis follow @GreatAssDaily?
I have had multiple clients who have been targets of hacking and other nefarious digital attacks. If Mr. Rambis' account was hacked as the Knicks claim he/the team should file a complaint with the proper state and/or federal authorities.
Whomever is advising the Knicks and Coach Rambis regarding this matter failed miserably. There are significant legal, business, and personal and corporate reputation issues involved. The bottom line is that many PR firms and social media consultants don't understand how intertwined these issues have become in the Digital Age and it shows when an incident like this occurs.
Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.