Will Dallas Police Tweet Create Millions In Legal Liability?

Social Media has changed our society forever.  Our physical lives have become so intertwined with our digital lives that it is difficult to keep them separate.  Unfortunately, many people, businesses, government entities, schools, and other organizations still don't have a clue about the legal ramifications of every single Tweet, post, snap, livestream, etc...

During the past several days, we have had multiple terrible tragedies occur that were either streamed live on Facebook or posted online soon after the incidents occurred.  The facts surrounding the shootings in Minnesota and Louisiana where police officers shot and killed African-American men who may have been armed but not brandishing their weapons or acting in a menacing way are very troubling.  Due to the proliferation of cell phones and social media, footage of these incidents and/or aftermath have been viewed and shared millions of times around the world before the authorities have had the time to investigate what happened.  

Unfortunately, it appears that many government agencies do not understand the legal implications of social media.  A case in point is what happened in the aftermath of the terrible tragedy in Dallas where at least 12 police officers were shot and 5 tragically killed in a senseless attack on law enforcement who were at a peaceful protest for the shootings that occurred in Louisiana and Minnesota. According to multiple published reports, the shooter "wanted to kill white people, especially white officers".

In the chaos that ensued after the shootings, the Dallas Police Department Tweeted out a photo with the caption:  "This is one of our suspects. Please help us find him!"  Within hours of the Tweet, the person pictured in the photo had allegedly received thousands of death threats. This person ended up not being connected in any way to the Dallas tragedy and was just a person exercising his First and Second Amendment rights in a public street during a peaceful protest.  

I am not sure who on the Dallas Police Department published the irresponsible Tweet but it may create tremendous legal liability for the agency.  In 2013, The New York Post settled a lawsuit for inferring that a couple of innocent people were involved in the Boston Marathon terrorist attack. Seventeen years earlier, the 1996 terrorist bombing at the Atlanta Olympics made a pariah out of Richard Jewell after law enforcement carelessly leaked his name to the media as the prime suspect in that terrible attack.  

Since 2011, the Dallas Police Department has spent approximately $6 million dollars on lawsuit settlements.  Most of those settlements were related to police brutality and other misconduct issues. I am not aware of a case where the police department has created a a social media fire storm that put an innocent man's reputation and safety at risk.        

The bottom line is that organizations need to better understand the legal and societal issues inherent with social media.  This includes better policies, education, and training. Over the years, I have seen too many entities create bad policies and not hire the right people to properly advise, educate, and train their employees about digital issues.  

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

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. 

Hulk Hogan Awarded $115 Million In Gawker Naked Video Lawsuit

Privacy still matters in the Digital Age.  A Florida state jury awarded former professional wrestler Hulk Hogan $115 million dollars in a lawsuit against the online publication Gawker for publishing a video of him taken without his consent of him having sex with his former best friend's wife.

$55 million dollars of the jury's award was for economic harm and $60 million dollars was for emotional distress.  Punitive damages may also be awarded next week so its possible the award may substantially increase.

The recent Erin Andrews $55 million dollar Internet naked video award set the bar for privacy violations in the Digital Age and the Hogan case appears to have taken it several steps further. While both of these cases may be appealed and its doubtful that either will ever receive close to the figures that these juries have awarded, these awards demonstrate that the public is ready to punish those who destroy the personal privacy of others on the Internet.    

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

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.  

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.  

Email Privacy Act: Much Needed Reform

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.

Will The FTC Investigate the NFL's Russell Wilson for Tweet?

Social Media may be a very productive avenue to market your brand and get the word out about an advertising campaign.  Utilizing celebrities and professional athletes who have a well developed social media presence may be a successful method to create buzz about a new product or service.

While engaging celebrity endorsers it is imperative that they (and their agents/agency/sponsors) are educated about the appropriate regulations that need to be followed to ensure legal compliance.  I have written about the FTC advertising regulations multiple times, here, and here for example, and have also provided official comments to the FTC about areas for further review.  Earlier this year, the FTC provided more guidance regarding its online advertising regulations that advertisers and their paid endorsers must follow.        

For several years, major companies such as Lord & Taylor along with celebrities such as Pharrell Williams, and Kim Kardashian have had to face regulatory scrutiny due to their social media campaigns/endorsements.  While this scrutiny has been limited, it would not surprise me if the FTC decides to make an example out of someone.  Earlier today, the Seattle Seahawks quarterback Russell Wilson tweeted, "I believe @Recovery_Water helped prevent me from getting a concussion based on a bad hit! #NanoBubbles"  

At first glance, the Tweet seems harmless.  However, Wilson didn't acknowledge in the Tweet that he is an investor in the product.  I don't know if Wilson is a paid endorser or what type of compensation if any he may receive(d) for the Tweet and other online activity regarding the alleged (de facto) endorsement.  While it is too soon to speculate on whether the FTC may become involved it demonstrates that brands and professional athletes must be careful about their online activity.

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

Emoji Evidence Important in Silk Road Trial

Have you ever sent a text or email with an emoji?  For those who don't know what an emoji is, it is a small picture that helps demonstrate an emotion.  Some examples include a smiley face or a frown that is included at the end of a text or inside of an email. 

An emoji or emoticon should only be inserted after carefully weighing the potential legal consequences.  Every time you insert a smiley face or frown in a text or email you need to realize that it may be utilized as digital evidence.  An emoticon may create tremendous legal liability for the sender.

For example, during the Silk Road trial emoji evidence has become an important issue.  While video and phone call/audio recordings have been introduced as evidence during legal proceedings for years, digital evidence is now coming into its own.  During the past 15 years, emails, text messages, and other digital created data has grown in importance.  This change has occurred since we now communicate more and more on digital platforms.

The bottom line is that not only may written or spoken words may come back to haunt someone in a legal proceeding but also alleged emotions based upon an emojis or other symbols.  Therefore, it is imperative to be very careful when utilizing emoticons and/or symbols on digital platforms.  

Copyright 2015 by Shear Law, LLC All rights reserved.

Will the FTC Investigate Turn and Verizon Wireless For Privacy Killing Zombie Cookies?

A very troubling recent ProPublica investigation found that Turn, an online advertising company is "using tracking cookies [i.e. "Zombie Cookies"] that come back to life after Verizon [Wireless] users have deleted them."  These revelations are very troubling and demonstrate why stronger privacy laws are needed and why state and federal regulators need to investigate and take action against those companies that abuse their access to our personal information.

According to ProPublica, "Some users try to block such tracking by turning off or deleting cookies. But Turn says that when users clear their cookies, it does not consider that a signal that users want to opt out from being tracked....Turn executives said the only way users can opt out is to install a Turn opt-out cookie on their machine. That cookie is not designed to prevent Turn from collecting data about a user - only to prevent Turn from showing targeted ads to that user.  ProPublica's tests showed that even Verizon users who installed the Turn opt-out cookie continued to receive the Turn tracking cookie as well. Turn said despite the appearance of the tracking cookie, it continues to honor the opt-out cookie.  Initially, Turn officials also told ProPublica that its zombie cookie had a benefit for users: They said they were using the Verizon number to keep track of people who installed the Turn opt-out cookie, so that if they mistakenly deleted it, Turn could continue to honor their decisions to opt out.  But when ProPublica tested that claim on the industry's opt-out system, we found that it did not show Verizon users as opted out. Turn subsequently contacted us to say it had fixed what it said was a glitch, but our tests did not show it had been fixed."

Within a couple of days of ProPublica's excellent investigation, Turn announced that it "would stop using tracking cookies [i.e. Zombie Cookies] that are impossible to delete."  While this is a welcome development there are many questions left unanswered.  For example:
How long was Turn using Zombie Cookies?
What information was Turn's Zombie Cookies collecting and how was it being utilized?
Will Turn permanently delete all the data its Zombie Cookies collected?
How can we verify that the Zombie Cookie program has been terminated?
How can Turn be trusted not to create similar programs that are as troubling as the Zombie Cookie?

Zombie and Super Cookies are not only a threat to our personal privacy, they are also a threat to our personal safety and may lead to hidden discrimination against people based upon their race, religion, sexual orientation, age, health, etc...

Last week, during President Obama's history making privacy speech at the FTC he stated, "[i]f we are going to be connected we need to be protected."  Will Turn and its advertising clients change its practices and heed the President's call to better protect our privacy?

Copyright 2015 by Shear Law, LLC All rights reserved.