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.

NLRB Refers To Northwestern's Illegal Social Media Policy in Ruling Student Athletes May Unionize

In a ground breaking ruling earlier today, the regional director of the National Labor Relations Board ruled today that Northwestern University scholarship football players are employees of the school and are eligible to form the nation's first college athletes' union.  According to ESPN's Lester Munson, the ruling is very well-reasoned.

As part of the rationale as to why Northwestern's scholarship football players are to be considered employees rather than student-athletes the ruling mentions Northwestern's illegal student-athlete social networking policy.  On page 5 it states, "[t]he players must also abide by a social media policy, which restricts what they can post on the Internet, including Twitter, Facebook, and Instagram.  In fact, the players are prohibited from denying a coach's "friend" request and the former's posting are monitored." 

Northwestern's student-athlete social networking policy is in clear violation of Illinois Public Act 098-0129.  This act states, "It is unlawful for a post-secondary school to request or require a student or his or her parent or guardian to provide a password or other related account information in order to gain access to the student's account or profile on a social networking website or to demand access in any manner to a student's account or profile on a social networking website."

On August 14, 2013, I wrote that Northwestern will be required to change its student-athlete social media policy before 1/1/2014 because of Illinois' new social media privacy law.  Unfortunately, this did not occur and its illegal policy was utilized against them in analyzing that a student-athlete is an employee and not a student.  

While this ruling may eventually be overturned, it should serve as a wake up call to NCAA schools that highly regulate their student-athletes' digital usage.  Athletic departments that enforce strict social media policies and/or utilize social media monitoring companies may soon have more legal and financial issues to confront than anticipated.  Continuing to deploy social media monitoring companies to watch student-athletes online may encourage other administrative and/or judicial bodies to conclude that student-athletes are not students but employees.

NCAA athletic departments should be careful for what they wish for.  With access comes responsibility.  Strictly regulating student-athletes' personal digital lives will create tremendous legal and financial problems. 

Copyright 2014 by the Law Office of Bradley S. Shear, LLC  All rights reserved.

Tweets, School Bathrooms, The First Amendment, and The Right To Privacy

What if a student takes a photo of behavior occurring in the common area of a school bathroom during school hours that appears to violate school policy and then Tweets out the image with commentary?  Should the photographer who captured and Tweeted out the image be disciplined but those whose behavior allegedly violated school policy not be punished?  This is a question that a public high school in Maryland is answering.  

Recently, a student Tweeted out a selfie of herself with two other students in the background allegedly engaging in sexual contact.  As of this writing, the photo has been re-tweeted over 14,000 times.  After school administrators became informed about the situation, the Tweeter was suspended for ten days.  The students who appeared in the photo (their faces are not viewable) allegedly engaging in some type of personal interaction that may or may not be of a sexual nature were not disciplined.  

I am very protective of free speech rights; especially for students.  I strongly believe in the Tinker v. Des Moines decision which ruled that students do not leave their constitutional rights at the school house gate.  However, I believe in Griswold v. Connecticut's ruling that we all have a right to privacy.  Mobile devices and wearable technology will test the right to privacy versus the first amendment in the Digital Age.  This situation demonstrates that their are no easy answers regarding where our first amendment rights end and our right to privacy begins.

Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved. 

Sextortionist jailed for sexual cyber blackmail

A sexual cyber blackmailer was jailed for 5 years for hacking the digital media accounts of at least 350 women.  Sextortionist Karen "Gary" Kazaryan pleaded guilty in July to charges that he hacked into women's email and/or social media accounts and trolled them for nude and sexually-suggestive pictures from his California home.

According to court documents, Kazaryan gained unauthorized access to digital accounts and then obtained naked pictures of his victims and extorted them to provide additional photos and/or videos. If his victims refused his demands, he posted the original embarrassing content on the Internet.  The sentencing memorandum stated "[Kazaryan's] victims were devastated and felt like they had been raped".  More than 3000 nude images were found on Kazaryan's computer.

It wouldn't surprise me if more of these types of crimes are prosecuted in the near future.  However, is 5 years enough of a sentence to deter others from following in Kazaryan's footsteps? 

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

Vietnam Enacts Law To Fine Social Media Critics

During the Thanksgiving holiday it is important that we give thanks to our country's forefathers who created a government and society that protects and values the freedom of speech.  This freedom is the bedrock of our democratic society.  The First Amendment of the U.S. Constitution generally protects our citizens from being punished for criticizing the government.  This protection applies not only in the real world but also in the digital world. 

Not every country provides its citizens a "Frist Amendment" right to criticize their government.  According to AllThingsD.com, Vietnamese officials recently announced a new law that appears to provide its government the power to jail or issue steep fines to citizens who disparage the state via social media.

Vietnam's new law, "Decree 72" enables the government to hand out fines of 100 million dong ($4,740) to anyone criticizing the country on social media, and/or uses the Internet and information on the web to undermine the state.  According to the Electronic Frontier Foundation, earlier this year 13 bloggers/activists were sentenced to prison terms ranging from 3 to 13 years for expressing their opinions on line. 

It is important to remember that when visiting foreign countries you must be aware of their laws to ensure that your digital activity does not create an international incident and/or land you in jail.

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

Did the NFL's Richie Incognito Violate Florida's Cyber-Harassment Law?

A very troubling situation in the Miami Dolphins' locker room is unfolding regarding alleged hazing and bullying.  It is alleged that Dolphins guard Richie Incognito was bullying offensive tackle Jonathan Martin in person, on the phone, on social media, and in texts.  My first job out of law school was with the National Football League Player's Association (NFLPA) and during my time there I assisted the NFLPA's Health and Safety Committee on several matters.  While hazing has long been a part of many professions, the reported allegations here are very troubling.

Hazing occurs in many walks of life and may be considered part and parcel of the team building process.  This behavior occurs in the military and the plot of the movie "A Few Good Men" centers around what happens when hazing goes to far.  A recent case in Afghanistan demonstrates that in some instances this type of behavior can kill.  The movies "Full Metal Jacket" and "An Officer and A Gentleman" also provide examples of hazing by fellow soldiers and by one's commanding officer.  Hazing incidents at some colleges demonstrate that this behavior is not confined to the military and may take many forms.  Mental cruelty, physical labor, and over work until exhaustion or death have been documented. 

When do hazing incidents cross the line from "team building exercises" to violations of the law?  Florida has a statute that appears to shed some light on this issue.  Under Florida's law,
(2) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

While it is too early to speculate on whether Incognito violated Florida law since not all of the facts are known, if Incognito's voice mails, texts, Tweets, in person interactions, etc.. demonstrates that he "repeatedly" harassed Martin it would not surprise me if charges are brought against Incognito to make an example out of him.  Last month, two girls (12 and 14 years of age) in Florida were arrested after they allegedly tormented a 12-year-old until she committed suicide.  Therefore, Incognito may want to seek legal counsel sooner rather than later.     

The bottom line is that states across the country are amending their laws to account for digital harassment.  While some of these laws may potentially conflict with the First Amendment, the march towards treating digital matters the same as off line issues continues and demonstrates the need for not only NFL players but for everyone to better understand how their digital usage may create tremendous legal liability.     

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

White House Twitter Critic Fired Over Tweets

A Twitter Critic of the White House was recently unmasked and fired from his Obama administration job.  According to the Daily Beast, Jofi Joseph, a member of in the National Security Staff was terminated from his position after he was caught as the person behind the Twitter handle @natsecwonk.

In the past, those who wanted to criticize the President and/or his staff would reach out to Bob Woodward of the Washington Post or another reporter and the information would end up in the newspaper and/or in a book.  However, now it appears that internal administration critics are going directly to the public via Twitter and/or other digital platforms.

At first glance, it doesn't appear that Mr. Joseph released top secret material in his Tweets.  Anonymous digital postings are usually not very reliable.  However, Mr. Joseph's unmasking and termination has now provided some credibility to the anonymous Tweets that previously were not given much weight by those outside the administration.  According to Mr. Joseph's comments to Politico, "[w]hat started out as an intended parody account of DC culture developed over time into a series of inappropriate and mean-spirited comments."       

Why is the Obama administration spending tremendous resources hunting down Twitter critics?  The administration has been actively targeting journalists and their sources for some time.  How did the White House actually unmask its Twitter critic?  Did the White House ask for and receive Twitter's assistance?  Does the administration realize that silencing a Twitter critic has made the matter worse because of the Streisand Effect?  Since the Tweets in question appear to be just inappropriate and mean-spirited why should the administration care?

Mishandling and/or leaking classified documents and/or information may be a crime depending upon the circumstances.  If Mr. Joseph's digital activities violated any laws he should be prosecuted like anyone else.  However, posting negative Tweets about those in the government is not a crime.   In a democracy, this is called exercising our freedom of speech rights.  Last week, I spoke to a group of international government officials who wanted to know what to do when someone anonymously mocks them online.  My response was to "get some thicker skin". 

While there may be some potential First Amendment, employee/employer, and national security legal issues to address once all of the facts have come to light, at the end of the day this is about a person who happens to be a government employee Tweeting anonymously about his personal observations and/or thoughts about the inner workings of the government.  Nothing more.   

President Obama is the first President to become elected because of social media and his administration has utilized multiple digital platforms to convey his message directly to the entire world without a media filter.  Its time for some members of the President's inner circle to get some thicker skin and realize they are the first administration to govern in the Social Media Age.  The administration's "Twitter critic mole hunt" raises more questions than it answers. 

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

Dead Cyberbullying Victim's Image Used In Facebook Ad

Bullying whether offline or in cyberspace has the potential to cause great pain for its victims and their families.  With the increased usage of social media, more bullies are going online to target their victims.  Unfortunately, the children's rhyme, "sticks and stones may break my bones, but words will never harm me," is losing some power in today's social media fueled world. 

Over the past several years, there have been multiple incidents where online bullying has been a contributing factor in teenagers committing suicide. These tragedies demonstrate the need for parents and teachers to stress the importance that the above children's rhyme is now more important than ever.  In addition to better educating our children, social media platforms must do a better job of policing their web sites and making the personal privacy of their users a top priority.

One such example of a social media platform putting profits ahead of personal privacy is when Facebook was recently caught featuring a photo of Canadian teenage Rehtaeh Parsons who killed herself earlier this year.  Even though Facebook apologized for allowing this to happen, it demonstrates that most digital platforms are reactive in nature and not proactive when it comes to privacy.  While I am generally not a proponent for stricter regulations, this appears to be another example of why stronger digital privacy laws may be needed to protect our children from companies that may be putting profits ahead of privacy.

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.