Bank Privacy in the Social Media Age

Have you ever read the annual bank privacy notices that you receive in the mail? If not, it may be a good time to do so.  The FDIC has a website filled with information regarding how banks may protect or utilize your personal financial information for purposes other than account maintenance.

I recently updated some of my privacy choices for one of the banks I do business with and found it to be more cumbersome than anticipated.  I initially tried to make the appropriate updates online but the process was not consumer friendly so I contacted my bank.  The choices I made to help better protect my privacy and reputation included: Do not call with bank offers; Do not email with bank offers; Do not send me offers in the mail from the bank; and Do not share my personal financial information with bank affiliates or third parties.

I can't recall the last time this bank sent me an offer that was worth taking advantage of and I have never received an offer from one of this bank's affiliates or a third party that does business with the bank that was worth accepting.  In general, I have found these marketing offers to be worthless and a waste of my time.

The stronger your privacy choices are the less likely you will become a target of a scam. Protecting your privacy will help better protect your personal and professional reputation.    

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

Social Media Reputation, Employee Complaints, the NLRB, and Chipotle

The National Labor Relations Board recently upheld a decision by an administrative law judge against Chipotle that ruled the company violated an employee's right to complain about his job when it required him delete tweets that were critical of the company and then subsequently fired him.  

The employee deleted some personal tweets after Chipotle's national social-media strategist saw them in January 2015. According to The New York Daily News, one of the offending posts stated: 

@ChipotleTweets, nothing is free, only cheap #labor.  Crew members make only $8.50hr how much is that steak bowl really?

How did Chipotle's national social media strategist identify that the Twitter account that had the offending Tweets came from one of its employees?  Did the employee identify himself as such? Why would the social media strategist think this tweet or group of tweets was so offending that it needed to ensure that the Tweets were deleted?  Did the social media strategist realize that his/her actions had the potential to create a social media crisis? 

Chipotle's social media strategist's actions led to tremendous legal bills for the company and numerous negative articles about the company's social media policy. One take away is that too many "social media experts" do not understand how to properly draft, implement or follow corporate social media policies.  

Many "social media experts" have never had the proper training on how to handle this type of situation and how to avoid a social media crisis.  In this case, the best path forward after seeing one or more negative tweets would have been to ignore it/them.  It would have saved the company tens if not hundreds of thousands of dollars in legal and other related costs.

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

Social Media Cyberbullies Unfairly Attack Reputation of Gabby Douglas

As an American, I am very proud of how our Olympians are doing in Rio. Many of our athletes have had to overcome tremendous personal obstacles just to have an opportunity to compete at the Olympics.  One such athlete is Gabby Douglas who has been a star performer for years.  

Gabby Douglas has won 3 Olympic gold medals while representing the United States (two at the 2012 London games and one at the 2016 Rio games) and multiple gold medals in the world championships.  She is not just an all around Olympic champion but also a class act who conducts herself professionally in public. Always smiling and being classy, despite public set backs and dumb questions from the media is extremely difficult for anyone, especially someone who is just 20 years of age.

After Gabby Douglas' team won the all around gold medal in gymnastics, a handful of Internet cyberbullies criticized her for not putting her hand over heart during the playing of our national anthem during the medal ceremony. In years past, these online critics would be ignored. Unfortunately, some members of the international media gave these cyber-bullies an out sized platform to unfairly criticize the way Gabby Douglas conducted herself.

If these ignorant cyber-bullies knew their Olympic history they would realize they had no basis for their criticism. For example, some members of the original Dream Team in 1992 that featured some of the best basketball players to ever suit up didn't put their hands over their hearts during the playing of our national anthem at their medal ceremony.

Even though Ms. Douglas was perfectly respectful during the competition and afterward and owed nobody an apology, she still gave one to get this ridiculous story out of the media cycle. Sometimes the best course of action to put a matter to bed is to apologize and move on, other times it may be best to ignore unfounded criticism, and sometimes it is best to challenge the critics.

When a potential social media crisis is about to strike it is imperative to understand how to properly respond.  Your professional reputation or the reputation of your business may hang in the balance of your actions.

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

Reputation Expert's Career Over After Social Media Outrage

When I first read this Business Insider interview with Saatchi and Saatchi's chairman Kevin Roberts about gender diversity, I was surprised by his statements and his admission that he doesn't spend any time on gender issues.  If these comments were made in 2006 and not 2016 I don't believe they would have led to his ouster.

What has changed in the past 10 years?  The ubiquity of social media and other digital platforms that can make you the most popular person in the world one minute and the biggest a@#$)*e the next. In the Social Media Age, any comment in either the physical or digital world has the potential to damage one's personal and professional reputation.

According to The Wall Street Journal, Kevin Roberts was due to retire in May 2017 before his Business Insider interview was published.  However, that changed quickly after social media users re-tweeted the Business Insider article and other media outlets picked up the story.

Before agreeing to an interview or appearance on any traditional or digital platform it is important to properly prepare. I regularly speak to the media and counsel clients on how to interact with journalists.  Not everyone is ready for the attention that may occur after they are interviewed about an issue.

Your reputation may forever be negatively altered by one wrong statement to the media or Tweet. There may also be tremendous legal consequences involved when you speak to the media or post online so when you are unsure about what to do don't forget this famous saying:  "better to remain silent and thought a fool than to speak and remove all doubt".

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

BREXIT Will Alter Technology Public Policy, Privacy, and the Law

The votes have been counted regarding the BREXIT which was the referendum on whether Great Britain would stay in the European Union or leave and the result is that the UK will exit the EU.  The vote to leave won by more than a million votes (52%-48%; 17,410,742-16,141,241).

In the short term, stock markets around the world are plunging due to the uncertainty. However, when the dust has settled the legal and regulatory work on how to adjust to this change in relationship will begin. While the vote will have a tremendous effect on many international issues, it appears that the UK's data protection rules may be unaffected.  In the short term, this appears so; however, in the long term this may change.

The vote was a surprise to many lawyers and technology public policy analysts and this is demonstrated by the lack of planning in the event that the UK voted to leave the EU. Will other countries follow the UK's lead and will this create new alliances? While current trade deals may not be affected by the vote, new rules and regulations will be needed and future trade deals involving the UK and the EU will need to account for this result.  

Change is generally hard.  The people of the UK have spoken and in a democracy the will of the people must be followed.  Even though it is too soon to speculate on how this vote will ultimately affect technology public policy and privacy issues there are a lot of unanswered legal issues surrounding the process in which the UK will leave the EU.

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

Restaurant's Reputation Harmed Over "Fatty" Receipt on Facebook

A Rhode Island restaurant recently fired one of its employees who identified a customer on a receipt as "fatty".  The former employee who was also the son of the owner is no longer allowed to eat at the restaurant or come onto the property. The owner immediately apologized for the incident and has tried to reach out to the upset customer to personally make amends. Unfortunately, after this matter has gone viral the owner is now receiving death threats and the incident has gone from local news to national news.    

There is no excuse for the now former employee to have identified the customer as "fatty". However, instead of first posting the receipt on Facebook why didn't the customer try to notify the manager about the situation? This incident will now be tied to not only the restaurant, the owner, and the fired employee, but also to the customer.  Not everything that happens to us needs to be shared and broadcast digitally for the entire world to see. The customer may now be forever tied to the term "fatty". 

The old adage that "sticks and stones may break my bones but names can never hurt me" still needs to be taught to our children because we live in a country that has strong protections against limiting the freedom of speech.  While name calling is childish and has no place in a professional environment, it happens.  How you respond to being called something that offends you goes into determining your overall reputation.

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

Florida Prosecutor's Reputation Destroyed Over Facebook Comments

Be careful what you say online because it may come back to hurt you.  Unfortunately, too many people don't heed this advice and this time an attorney has forever harmed his reputation because of unprovoked online posts. Florida Assistant State Attorney Kenneth Lewis was suspended for posting online inflammatory messages about the city of Orlando in wake of the tragic nightclub terrorist attack.  His comments violated his employer's social media policy.

It appears that Mr. Lewis has been investigated for previously posting inappropriate online comments.  Just because you have a right to say something doesn't mean its a good idea to do so.  For years, people have felt less inhibited to attach their names to very incendiary online comments because its so easy to do so from the comfort of your own home.  Unfortunately, many people don't realize that comments meant for just friends or family may be seen around the world in just seconds.

Will Mr. Lewis be passed over for promotion because of this issue?  Will Mr. Lewis' online comments encourage his employer to terminate his employment for this or other behavior?  Will his online activities hurt his ability to transition to another employer?

In the Digital Age, it is imperative to understand how the Internet may help or harm your personal and professional reputation.

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

Teenager Sues Virginia Prosecutor Over Erect Penis Photo Demand

According to The Washington Post, a teenager who was caught up in a sexting investigation has sued a Virginia prosecutor for civil rights violations.  While the police were investigating sexting between two teenagers in 2014 they obtained a warrant to force the teenager to enable law enforcement to take photos of his genitalia. Fortunately, the public was notified of this ridiculous situation and the teenager was not required to take a photo of his erect penis for evidence.

This request created a major public uproar.  It sounded like those requesting the photos had been fans of the the 1980's movie Porky's when physical education teacher Ms. Balbricker asked the high school principal if he would sanction a penis (tallywacker) lineup of several students so she could identify which student stuck his penis through a peep hole in the girl's bathroom. Ms. Balbricker claimed that she could identify the offending student's penis because it contained a distinctive mole. In the movie, the request for the penis line up was denied. 

The detective who handled the case killed himself last year after being accused of molesting two young boys so this raises further doubts regarding the motive for photos of the teenager's erect penis.I initially wrote about the case in 2014 and stated, "My hope is that prosecutors and judges across the country realize that this is the wrong way to deal with sexting by teenagers."

The bottom line is that teenagers should be provided more education about these issues instead of outright punishment for these types of situations.

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

Erin Andrews Naked Video Lawsuit and Privacy in The Digital Age

The Erin Andrews naked video stalking matter is one of the most troubling examples of what can happen when your privacy is destroyed when illegally created video is uploaded onto the Internet. Ms. Andrews is a sports reporter who has worked at ESPN and is now at Fox Sports. In 2008, a stalker by the name of Michael David Barrett started to follow her and thought it would be a profitable economic venture to video record her nude and then sell the images to the highest bidder.

Mr. Barrett followed Ms. Andrews to the Nashville Marriott at Vanderbilt University. While at the hotel, he figured out how to obtain Ms. Andrews' room number by using a house phone and asking to be connected to her room. When being transferred, Ms. Andrews' room number appeared on the phone's display.  With this information, Mr. Barrett asked the hotel if he could stay in a room next to Ms. Andrews and he was granted his wish.

Once Mr. Barrett obtained Ms. Andrews room number, he utilized a hack saw to remove her door's peephole.  When he heard that she was showering he uncovered her door's doctored peephole and put his cell phone to the opening and recorded approximately four and a half minutes of her naked. After he was finished, he tried to sell the video. There were no interested bidders so he uploaded it online anyway.

Mr. Barrett was subsequently prosecuted for his crimes and Ms. Andrews filed a civil lawsuit against Mr. Barrett and the hotel operator/owner where the incident occurred.  According to testimony during Ms. Andrews' civil trial against those she is trying to hold legally responsible for this incident approximately 17 million people have so far viewed the video of her naked.  

Through no fault of her own, she has been seen naked all over the world for more than 7 years.  No technology will be able to permanently scrub this the content from the Internet.  While Ms. Andrews has prospered in her career despite this very disgusting incident, I believe she has lost out on tens of millions of dollars in potential income and business opportunities.  Because of this situation, she has to spend a tremendous amount of time and money on security and privacy protocols along with mental health assistance. The emotional toll has been devastating and will continue for years to come.

There is recent precedent for a multi-million dollar damage award for emotional distress for privacy damages. Last year, rapper 50 Cent was ordered to pay $5 million dollars in damages for leaking a naked video of a woman who had fathered a child with a rival of his. Therefore, juries have begun to understand that damages should be awarded for destroying one's personal privacy.

Interestingly, NBC News has reported that a representative of one of the defendants/a witness who has testified was accused of watching Ms. Andrews' naked video in a restaurant yesterday. This appears to demonstrate that one of the defendants do not take this matter seriously. After watching some of the testimony and reading about the activities of those acting on behalf of the defense, I hope Ms. Andrews wins her case and is awarded millions of dollars.

The hotel owed a duty of care to protect Ms. Andrews' privacy. It failed. But for the hotel's negligence in deploying technology that would enable others to obtain the room numbers of their guests, this incident would not have occurred. The hotel's choice of technology put the personal privacy and safety of Ms. Andrews and other guests at risk. Ms. Andrews will always be naked on the Internet and has incurred significant damages that I believe have been proven at trial.  Therefore, it wouldn't surprise me if she is awarded millions of dollars in damages.

Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

How Much Is Your Data Worth To Facebook?

Facebook recently released its fourth quarter 2015 earnings and it demonstrated that the social media giant is hitting its stride.  It made an average of $3.73 off each of its users around the world.  However, in the United States and Canada, it made an average of $13.54 off each of its users.

What do these figures mean exactly?  Well, it demonstrates that there is value in the information you provide to Facebook in exchange to utilize their service.  Therefore, every time you provide Facebook information about your personal life (i.e. date of birth, marital status, kids, etc...), upload a photo, "like" a corporate page, etc...that is data that may be sold to data brokers, advertisers, and others.  There is tremendous value in your personal information.

Due to Facebook's very troubling privacy policy and data usage practices, I don't trust the platform with my personal data and/or my family's information.  I have limited personal information on my Facebook account with intentionally misleading content to protect my family's personal privacy and safety.  Your Facebook account may create tremendous legal problems for yourself and put you and your family's personal safety at risk so the value of your data should be a wake up call.

If someone wants to get in touch with me they can call me or email me.  Those who want to say hello know that poking me via Facebook will not get my attention.  It never has and never will.

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Will Twitter's New Rules Lead To An NRA Account Suspension?

In order to post to most websites and social media platforms you click "I agree" to their terms of service.  In many instances the terms provide platform owners great flexibility on how to deal with visitors to their websites.  In other words, if you want to play in their sandbox you need to agree to their rules.

Earlier this week, The Washington Post reported that Twitter changed its rules at the end of last year in an attempt to limit harassment.  In particular, Twitter's new rules state:     

Any accounts and related accounts engaging in the activities specified below may be temporarily locked and/or subject to permanent suspension.

• Violent threats (direct or indirect): You may not make threats of violence or promote violence, including threatening or promoting terrorism.
• Harassment: You may not incite or engage in the targeted abuse or harassment of others. Some of the factors that we may consider when evaluating abusive behavior include:
• if a primary purpose of the reported account is to harass or send abusive messages to others;
• if the reported behavior is one-sided or includes threats;
• if the reported account is inciting others to harass another account; and
• if the reported account is sending harassing messages to an account from multiple accounts.
• Hateful conduct: You may not promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or disease. We also do not allow accounts whose primary purpose is inciting harm towards others on the basis of these categories.

Earlier today, The New York Daily News reported that an NRA controlled Twitter account tweeted a message with the photos of two Brooklyn state lawmakers with bullets next to their photos.  This Tweet appears to have been in reaction to new legislation announced that would limit ammo purchases in the state of New York.  Does the Tweet referenced in The New York Daily News violate Twitter's new rules? 

Last year, the U.S. Supreme Court in Elonis v. United States stated that mens rea (intent) was required to be proven under 18 U.S.C. § 875(c) of the U.S. Code (federal law).  While the Elonis case focused on criminal prosecutions, it doesn't affect whether Twitter or other websites can make their own rules on how people may interact on their platforms.  Therefore, Twitter may at its own discretion decide to suspend the referenced account.

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.

UK: Social Media Domestic Abuse May Lead To 5 Years In Jail

In the United Kingdom, a new law has gone into effect that will enable prosecutors to go after domestic abuse perpetrators who harm their victims online.  Under this law, charges may be brought in domestic abuse matters where there is evidence of repeated controlling or coercive behavior.

Controlling or coercive behavior is defined as a continuing act or pattern of acts which are used to harm, punish, or frighten a victim.  Some examples of repeated controlling or coercive behavior may include: monitoring a person via online communication tools (i.e. tracking apps on mobile devices), or threatening to reveal or publish private information.

While its too early to speculate how this new law will be applied, it demonstrates that it is imperative to understand the legal consequences of your online interactions.  Controlling or coercive tweeting, snapping, pinning, or posting may lead to prison.  

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

The EU's Push For Stronger Privacy Laws and Safe Harbor

Last week, the European Union took a step closer to enacting stronger digital privacy laws that will make it more challenging for companies to re-purpose the data they are collecting from their customers.  These new data protections would harmonize the privacy laws across the 28 members of the EU and stiffen the potential fines for violators up to 4% of a violator's global revenue.

The European Parliament and individual member governments still must pass the new proposals so it not certain that this is a done deal.  After all of the approvals have been obtained, the law may become effective within two years.

In general, I am in favor of strong industry self-regulation.  Unfortunately, this has not worked as hoped in the digital space.  Some companies are collecting massive amounts of personal information about their users and then utilizing the data for opaque secondary uses (i.e. selling the content to data brokers, psychological experiments, etc...).  Because of these non-transparent abuses, EU lawmakers felt it was time to act to reign in these practices.

Some positive aspects of these reforms provide users the right to know why they are being profiled, how they are being labeled, who is using their personal data, etc... This type of transparency will lead to greater accountability and hopefully lead to some companies changing their troubling privacy policies and data usage practices.  While it may be wishful thinking, I am optimistic that these new laws will convince U.S. law makers and regulators to push for some of these much needed reforms because there is little transparency in the data collection and usage industry.  

This latest push for stronger EU privacy laws coincides with the negotiation for an updated Safe Harbor data transfer agreement which may soon replace the previous one that was invalidated earlier this year.  In our digital dependent economy, participants need to be able to transfer data between continents in a timely fashion. Therefore, I am cautiously optimistic that an updated Safe Harbor Agreement will be finalized early in the new year because in our interconnected world it is imperative for businesses to have legal certainty.  

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

Homeland Security Will Vet Visa Applicants' Social Media

The Department of Homeland Security will soon expand its vetting of visa applicants to include social media.  This expansion appears to be in direct response to the recent terrorist attack in San Bernardino, California.  Surprisingly, there was a secret policy in place that banned officials from reviewing applicants' social media content.

If visa applicants urge their digital connections/followers to commit acts of terrorism against the United States and its allies online, it wouldn't surprise me if they would follow through with physical acts of violence if they are allowed to enter our country.  In response to these revelations about this secret policy to not review visa applicants' digital life lawmakers are demanding a change in policy. 

Will U.S. visa applications soon include requests for usernames/account names of all of one's social media accounts? Will applicants be required to provide access to their password protected accounts. Will increased scrutiny help make us safer? There are many unanswered questions as to how the actually vetting will occur.  

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

EU Backs Down On Proposal To Raise Social Media Age Limit to 16

In the EU, there was a recent proposal to raise the age limit for children to access social media platforms to 16 years of age absent parental consent.  The idea behind the bill was to help better protect the personal privacy and safety of children.  Banning kids from being able to do something will only make them more interested in subject.  As a parent, I witness this phenomena every single day.

After much deliberation, the EU decided against raising the age limit for social media access to 16 years of age absent parental consent.  EU member states will be free to set their own age restrictions between 13 and 16 years of age.  The debate surrounding this issue was extremely interesting because it demonstrates that law makers around the world are beginning to better understand the issues surrounding unfettered data collection and usage. 

Its importance to have robust conversations on data protection and personal safety issues. Every day, our world is becoming more complex as more personal data is being generated and utilized in ways previously never envisioned so there is a need for these types of continuing conversations.  

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

E.P.A.'s Secret Social Media Campaign Violated The Law

According to The New York Times, the Environmental Protection Agency (E.P.A.) engaged in an illegal covert social media campaign to back an Obama administration rule that was intended to to increase protections for our country's streams and waters according to the Government Accountability Office (G.A.O.).

The E.P.A. disputed the G.A.O.'s findings and an official with the agency stated, "[w]e use social media tools just like all organizations to stay connected and inform people across the country about our activities...[a]t no point did the E.P.A encourage the public to contact Congress or any state legislature."

Under the law, federal agencies may not participate in lobbying. The G.A.O. stated that the E.P.A. violated the federal Anti-deficiency Act which prohibits federal agencies from spending money without authorization.  Violating this act may lead to fines and/or jail time.  While its highly unlikely that anyone will be fined or sent to jail for these activities this should serve as a wake up call to government agencies because utilizing social media for illegal activities may create tremendous legal issues that can lead to fines and/or imprisonment.   

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

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.

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 "Unfriending" May Create Legal Liability

Be careful whom you Facebook "friend" and "unfriend" because this act may have legal consequences.  An employment law case originating in Australia recently mentioned Facebook "Unfriending" in one of its decisions as a point of contention and it wouldn't surprise me if this issue gains more legal significance in similar cases around the world.

According to Wired UK, Australia's Fair Work Commission recently stated that that "unfriending" a work colleague showed a "lack of emotional maturity".  Did the commission declare the act bullying?  No; however, the fact that this was even mentioned demonstrates that the issue was on the minds of the commission's members and that it may play a larger role in future decisions.  

This new development demonstrates the importance of creating reasonable digital policies and training and continually educating employees about online issues.  The bottom line is that every digital mouse click and character posted may have legal repercussions.  Therefore, its imperative to ensure that the legal issues inherent are understood before you "friend" or "unfriend" people on Facebook and other electronic platforms.  

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

Did Volkswagen Violate the Computer Fraud and Abuse Act?

I was very troubled to learn that Volkswagen has been intentionally misleading consumers, governments, and other industry members about its cars' emissions.  This was obviously an attempt engineered to steal market share away from its competitors, harm consumers, and mislead governments about its practices.  As a former Volkswagen owner, I am outraged by this behavior.

When I recently took my car to have its bi-annual emissions inspection in Maryland, I wondered if the inspection was still really needed because I was under the impression that all cars today adhere to the EPA's emissions standards.  Obviously, Volkswagen's intentionally reckless and illegal behavior will ensure that state emissions testing programs will continue on for years to come.
    
There are potential FTC Article 5 unfair and deceptive trade practice and state consumer protection violations here.  In addition, it wouldn't surprise me if there are multi-billion dollar class action lawsuits filed.  However, one legal issue that has been largely overlooked is that it appears Volkswagen hacked its own car software for monetary gain.

Investigative Journalist Bob Sullivan was the first reporter to discuss the hacking issue in the proper context.  In a recent article he stated, the "Volkswagen story should be the beginning of some really serious soul searching, perhaps even a turning point for the Internet of Things.  It’s inevitable: our light bulbs, toasters, door bells, and our cars will all communicate some day soon.  We need a rock-solid ethic — not just laws, but a social morality — that machines should never do things unless people know all about them."

Did Volkswagen violate the Computer Fraud and Abuse Act by intentionally accessing software without car owners' knowledge or consent?  Did it also violate multiple state computer access/hacking laws?

While its too soon to speculate on all of the fallout that will occur, I believe this matter will bring more attention to computer/digital crimes, the Internet of Things, and the privacy and cyber security issues inherent.  My hope is that federal and state authorities make an example out of Volkswagen so other companies are less inclined to follow the same path.

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