FTC Fines Advertising Network For Illegal Mobile Tracking

The Federal Trade Commission has announced that mobile advertising company InMobi will pay a $950,000 civil penalty and implement a comprehensive privacy program to settle FTC charges it deceptively tracked the locations of hundreds of millions of consumers, including children, without their knowledge or consent to serve them geo-targeted advertising.

According to the FTC, InMobi misrepresented that its advertising software would only track user locations when they opted in. However, InMobi was tracking user locations whether users opted in or refused to provide permission. InMobi's advertising network has a reach of more than one billion devices via thousands of apps so there is a staggering amount of data that the company has illegally obtained. 

Under the terms of its settlement with the FTC, InMobi is subject to a $4 million civil penalty, which is suspended to $950,000 due to the company's financial position. The company will be required to delete all information it collected from users and it is prohibited from collecting consumers’ location information without their affirmative express consent. InMobi must also institute a comprehensive privacy program that will be independently audited every two years for the next 20 years.

How much money did InMobi make by intentionally deceiving consumers?  This deception demonstrates why there needs to be stronger laws and greater enforcement mechanisms in place to deter and stop illegal behavior. 

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Doctors Yelp Review Responses May Create Millions In Legal Liability

The Washington Post has an interesting story about how some doctors and health care professionals are responding to negative reviews online.  In essence, it sounds as though some members of the health care profession are violating the federal Health Insurance Portability and Accountability Act (HIPAA) by providing very personal details about a patient's care in response to negative online reviews.  

While some people believe that HIPAA provides strong privacy protections to patients there is no private right of action allowed for an individual to sue  for a violation of the act.  One option is to file a HIPAA privacy complaint with the federal Office of Civil Rights (OCR).  Another option is review your state's medical privacy laws to determine if there is a state based privacy claim.  

In 2014, the Indiana Court of Appeals unanimously upheld a $1.44 million dollar claim against Walgreens for a state based medical information privacy action.  In that case, a Walgreens employee violated a patient's privacy by viewing a customer's prescription records and disclosing that information to a third-party.       

The bottom line is that doctor practices, hospitals, and other health care providers should have the proper policies in place and be trained about legal social media issues that may affect their practices. Just because a social media "expert"/"guru"/"ninja", etc.... may advocate responding to a negative online review you may want to get a second opinion from a lawyer who understands the legal, privacy, and reputation ramifications of doing so.  

Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved.

Canadian Cable Company Facebook Shames Late Paying Customers

There is a valid reason why people are "cutting the cord" and getting rid of their cable subscriptions.  Some cable companies don't have a clue about customer service.  In a very troubling report, Canadian cable company Senga Services has been publicly shaming on Facebook its customers who are in arrears.

Senga Services' behavior was deemed so troubling that Canada's Office of the Privacy Commissioner asked the company to delete its customer shaming Facebook posts.  Do any of the publicly shamed customers have potential legal claims under Canadian law?  What if some of the customers that Senga publicly shamed had a bona fide billing dispute that Senga refused to addressed?  What if some customers were not properly notified of the billing issue due to a move?

Earlier this year, I switched my cable company because I had a major billing dispute.  My now former cable company had lied to me for years and over charged me hundreds of dollars.  Only after I wrote multiple letters to the company and threatened to file FTC and state attorney general complaints was I finally refunded several hundred dollars.

My matter was most likely only settled by the cable company because I am an attorney who has the knowledge and means to easily utilize the proper judicial or regulatory process to obtain the money I was owed.  Most people don't have this luxury.

Companies should tread very carefully when utilizing social media to reach their goals.  Too often organizations empower employees and/or agents to act on their behalf online who don't understand that their digital actions may have legal repercussions.  The bottom line is that its imperative to think before you post.

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Snapchat's Troubling New Terms Destroy User Privacy and Safety

Snapchat is an ephemeral messaging app that has become popular with millions of people due to its claim that the content users send using its platform is permanently erased after a certain period of time. This sounds great; however, federal regulators have found otherwise.

According to the FTC, in 2014 Snapchat was caught making false promises to consumers about the amount of content it was collecting and saving about them. This deception led to an FTC settlement that was announced in December of 2014 that prohibits Snapchat from misrepresenting the extent to which it maintains the privacy, security, or confidentiality of users' information.  

Unfortunately, this settlement has not yet encouraged Snapchat to become a company that actually cares about user privacy and personal safety.  For example, Marketwatch.com has reported that Snapchat recently changed its terms of service and the update appears to be very similar to Facebook's terms. Snapchat's new policy states, 

"But you grant Snapchat a worldwide, perpetual, royalty-free, sublicensable, and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, create derivative works from, publicly perform, broadcast, distribute, syndicate, promote, exhibit, and publicly display that content in any form and in any and all media or distribution methods (now known or later developed)." 

and

"To the extent it’s necessary, you also grant Snapchat and our business partners the unrestricted, worldwide, perpetual right and license to use your name, likeness, and voice in any and all media and distribution channels (now known or later developed) in connection with any Live Story or other crowd-sourced content you create, upload, post, send, or appear in. This means, among other things, that you will not be entitled to any compensation from Snapchat or our business partners if your name, likeness, or voice is conveyed through the Services."

In other words, these terms allow Snapchat to publicly display user content and utilize personal data in ways many users most likely do not understand nor would they knowingly agree to. Will Snapchat soon include a clear warning message in front of its app stating that its new terms harm user privacy and safety?  I highly doubt it....:)

I do not trust services that contain the above or similar terms.  Whether its words, photos, or videos, your content is not private nor safe when the above terms govern.  If you don't trust Facebook because of its privacy killing agreements with data brokers you shouldn't trust Snapchat.  It appears not to be a question of if, but when Snapchat enters into similar privacy killing agreements with data brokers.  Will the FTC soon open an investigation into these new terms?

The bottom line is that if you care about your personal privacy and safety you should avoid utilizing Snapchat.  

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.   

Ballot Selfies, The First Amendment, Privacy, and Public Safety

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.   

Facebook User To Be Fined Under Spanish Social Media Gag Law For Police Comments

Social Media in its infancy was hailed as a great equalizer for everyone's voice to be heard. Years ago, at conference after conference, I heard so called "futurists" and other "prognosticators" proclaim social media as the best invention since air conditioning or the microwave.

So many social media "evangelists" (a fancy term for some consultants who are full of s*#t) shouted from the roof tops how digital platforms would make the world a safer and freer place to exchange ideas and increase the freedom of speech.  Unfortunately, many of these "evangelists" don't understand how some governments and private companies are using social media to digitally follow and keep tabs on what people are doing.  Some of these new activities are actually a huge threat to democracy and our personal freedoms.  

Earlier this year, the government in Spain enacted its "Citizen Security Law" which appears to restrict what its citizens may say online about some government officials.  On July 22nd, the law was apparently utilized when local police in Spain accused one of its citizens of "making comments on social media that showed a lack of respect and consideration for Gumar's (a town in Spain) local police.  The accused may be fined hundreds of Euros and has hired a lawyer to fight the charges.  

Spain isn't the first country to enact and/or enforce laws specifically designed to stop its citizens from criticizing its government online and it will not be the last country to do so.  Therefore, it is imperative to be vigilant about digital freedom of speech and privacy.  You don't know how important these rights are until you lose them.  

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

U.S. Government Ethics Office Releases Personal Social Media Usage Standards

Earlier this month, the U.S. Office of Government Ethics (OGE) released its Standards of Conduct as Applied to Personal Social Media Usage.  The standards are as follows:

1.  Use of Government Time and Property
This requirement limits the amount of time employees may access their personal social media accounts while working on government business (i.e. while on the job).  In addition, supervisors may not order or ask a subordinate to work on their (the supervisor's) personal social media accounts.  

2. Reference to Government Title or Position & Appearance of Official Sanction
This requirement prohibits employees from using their official titles, position, or any authority associated with their government employment for personal gain.  This rules implies that in certain situations it may be a best practice to post a "clear and conspicuous disclaimer" that the content on one's personal social media account is not sanctioned or endorsed by the government.

3.  Recommending and Endorsing Others on Social Media
Government employees may recommend others on social media platforms such as LinkedIn.  However, in my opinion, supervisors and subordinates should be very careful when endorsing each other on digital platforms because it may create potential legal issues in the future.

4.  Seeking Employment through Social Media
Those seeking employment via digital platforms must conform with all applicable laws and regulations.  Therefore it is imperative to know and understand all rules and regulations when utilizing social media for employment purposes.

5.  Disclosing Nonpublic Information
Employees are prohibited from disclosing non-public information on digital platforms to further their personal interests or the personal interests of others.  The World War II adage, "Loose lips sink ships" is alive and well in the Social Media Age so use caution when posting information online.

6.  Personal Fundraising
Employees are permitted to utilize personal digital accounts to fund raise for non-profit charitable organizations as long as they comply with all appropriate federal rules.  For example, employees should not personally solicit funds from subordinates or prohibited sources.

7.  Official Social Media Accounts
Employees who are authorized to utilize official social media accounts must comply with all applicable laws, rules, regulations, policies, directives, etc...

OGE may issue updates from time to time so it is best to utilize caution when participating in social media.  The bottom line is when in doubt don't post online.

Copyright 2015 by The Law Office of Bradley S. Shear, 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.

Court Rules Mom May Be Banned From Posting About Family on Facebook

An appeals court recently ruled that a mother may be banned from posting about her children and ex-husband on Facebook.  According to Mycentraljersey.com, "[t]he restriction on what she [the mother] could say on Facebook was imposed after her ex-husband's family and the Hunterdon County Prosecutor's Office argued that the mother's maniacal postings were frightening, saying that they referenced Book of Revelation in the Bible, serial killer Jeffrey Dahmer, Satan and Adolf Hitler."

In the initial ruling the judge stated, "You can talk about what you want to talk about, but don't reference (your husband) or the children,"  The woman claimed that the restriction was a prior restraint. 

On the surface, this sounds like a clear cut First Amendment violation; however, it appears that
the court imposed the special condition with the purpose of advancing the mother's rehabilitation.  The woman was diagnosed with bipolar disorder and was arrested in May 2011 after trying to take her children to Canada in violation of a custody order.  She pled guilty to interference with custody and in return it appears that the prosecution dropped kidnapping charges.

The bottom line is that infringing on one's First Amendment rights is a slippery slope.  Taking away someone's right to freely express themselves is not something that should be done without weighing other options.  It would not surprise me if these types of cases become more commonplace in the future.

Copyright 2014 by Shear Law, LLC.  All rights reserved.

4th Circuit Appeals Court: Facebook "Like" Is Protected Free Speech

The Fourth U.S. Circuit Court of Appeals has ruled that "liking" a Facebook page may be protected free speech.  In this case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and in 2012 a U.S. District judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection." 

To help explain the context of its opinion, the court cited the 1994 case, City of Ladue v. Gilleo, and reasoned that Facebook "likes" are similar to political lawn signs because they are both symbolic expressions.  In addition, the court stated the "thumbs-up" symbol may be considered similar to a 1974 case (Spence v. Washington), which held that expression occurs when "there is an intent to convey a particularized message".

This ruling demonstrates that a growing number judges are willing to extend free speech protections that we have in the traditional world to the digital or social media world.  The bottom line is that government and private sector employers along with schools need to better understand the issues inherent with social media to avoid social media legal liability.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.