Playboy Playmate Under Criminal Investigation For Snapchat Photo

According to Entertainment Tonight, the LA Police Department has opened an investigation into 2015 Playmate of the Year Dani Mathers' Snapchat activity after it received a complaint from LA Fitness. It appears that the investigation is centered around an alleged illegally disseminated private image Ms. Mathers took of a fellow gym member inside an LA Fitness club. While Ms. Mathers was in the bathroom/shower area of an LA Fitness gym she took a naked photo of another person and posted it on Snapchat with some negative comments.  

Subsequently, the naked photo Ms. Mathers posted went viral and she has gone from being the bully who body shamed a fellow gym member for personal pleasure to a target herself.    If the person in the photo comes forward Ms. Mathers could face up to six months in prison for her behavior.

Since Ms. Mathers published the naked photo, she has been suspended from her radio show and banned from all LA Fitness gyms.  Online, thousands of people have also stated how disgusted they are about Ms. Mathers' actions.      

Ms. Mathers' behavior demonstrates she didn't even realize what she had done was wrong. Her apology shows she doesn't have a clue about the law or proper digital behavior.  Ms. Mathers only apologized for posting the photo on Snapchat.  She admits in her so called apology that she had the intent to take the naked photo of stranger and share it with her friends.  This demonstrates a lack of remorse and understanding of the seriousness of the situation.

People have an expectation of privacy in bathrooms whether they are in a public restroom or a private club.  Those who violate this expectation of privacy should be held legally accountable. If Ms. Mathers is sued by the person whom she photographed I wouldn't be surprised if a settlement or judgement is either six or seven figures. The Erin Andrews jury verdict and subsequent settlement is the benchmark to measure these types of privacy violations.  

The bottom line is that companies need to better train their employees about these issues because one dumb Snap, Tweet, or Post can create millions in legal liability.

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

Pokemon Go, Augmented Reality, and Legal Liability

Pokemon Go is the hottest mobile game sweeping the world.  It can easily be downloaded onto a mobile device and it incorporates the physical world into the virtual world.  In other words, its an augmented reality game.

Pokemon Go uses your phone's GPS and camera while you play the game.  In addition, Techcrunch has reported that the game wants permission to collect a tremendous amount of your personal information.  Generally, you should just say no to allowing for this type of personal data collection.  

While there are thousands of games that can be downloaded onto your phone this appears to be the first popular augmented reality mobile game that has gained international traction.  It has become so popular that criminals are utilizing it to rob and harm users.  According to published reports, at least 9 Pokemon Go users have been lured and robbed while using the app.

It may be a matter of when and not if a Pokemon Go user who has become a victim of one of these crimes sues the game's publisher for creating an "attractive nuisance" or some other type of tort.  Due to Section 230 of the Communications Decency Act it may be difficult for a potential Pokemon Go plaintiff to win a lawsuit based upon this or similar causes of action.

The bottom line is that users must understand the risks inherent when downloading and utilizing digital games.  Just because something may look harmless on your phone, that doesn't make it necessarily so.

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. 

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.

ESPN Fires Curt Schilling Over Facebook Post

ESPN fired Curt Schilling, a former major league baseball star after he made an offensive Facebook post.  This was not the first time that Schilling's social media behavior had gotten him in trouble; however, this post was the proverbial straw that broke the camel's back.  It showed a photo of a man that appeared to be dressed as a woman and stated, "LET HIM IN" TO THE RESTROOM WITH YOUR DAUGHTER OR ELSE YOUR'RE A NARROW MINDED, JUDGMENTAL, UNLOVING, RACIST BIGOT WHO NEEDS TO DIE!!!

Last year, Schilling was suspended from ESPN for an offensive Tweet that compared some Muslims with Nazis.  In that case, Schilling deleted the post and quickly apologized. However, during this social media crisis instead of apologizing for the post quickly he doubled down and defended it on his blog.  

Schilling has the right to voice his opinions. However, under his agreement with ESPN there is most likely a morals clause and under ESPN's social media policy it most likely enables it to fire him for making those opinions public on social media.  Most jobs in the U.S. are at-will meaning that employees may be fired for any reason or no reason at all that doesn't violate public policy (i.e. discrimination-age, race, gender, religion etc...) 

Schilling's reputation has taken a tremendous hit.  It is highly questionable whether he will be given another opportunity by a large media company to be a sports commentator.  It wasn't just one offensive social media post that did him in.  Schilling's cumulative comments online and offline and how he responded to them made it easy for ESPN to fire him.  

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.  

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 Police May Soon Have Power To View All Users Web History

Privacy is something you don't know you have until you lose it.  Unfortunately, the Internet has gone from the world's greatest communication and knowledge spreading platform to the best surveillance tool ever invented.

According to The Independent, UK police may soon be granted the power to view the web browsing history of everyone in the country.   The alleged bill would require communication companies to retain all web browsing history of its customers for 12 months in case the police or spy agencies want access.  The article claims that the police will still need to go through some type of judicial process to obtain the data.

A user's Internet search history may be very useful for law enforcement.  For example, in the United States, it appears that in the infamous disappearance of Caylee Anthony the police may have forgotten to check all of the Internet browsing history of a computer that was searched.  If all of the browsing history of the computer that was checked was readily accessible in one dashboard would it have changed the outcome of the case?

This potential new UK law is very troubling.  Will phone companies soon be required to tape record every phone call that is made?  Will people soon be required to tape record every personal voice conversation and keep a physical copy of every pen and paper interaction they have?  Will librarians soon be required to track every request by every user and keep it on file for 12 months?

The potential for abuse is tremendous.  Will one be prosecuted for just doing an Internet search about a topic?  Who will have access to it?  Will the proper cyber security and privacy safeguards be implemented to protect the data?  What happens when multiple people utilize a device?  Will everyone eventually be forced to have their own Internet ID # to track everything they do online? How much compensation will one be able to obtain after their browsing history is illegally leaked to the media?   These are just some of the many questions that need to be answered.    

Unfortunately, it sounds as though George Orwell's Nineteen Eighty-Four surveillance society is coming true in the U.K.  Which country will be next?  

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.  

EU Competitiveness Council Conclusions On The Digital Economy

In order for the European Union (EU) to better compete in the digital economy it may need to have a more cohesive strategy.  Earlier this month, the EU discussed its plans to encourage its member countries to work together to create a single market for the online economy.

The EU's vision to become more competitive as a region may entail setting up unified rules that cover issues such as e-commerce, broadband spectrum, courier and parcel delivery rates, telecoms matters, and a revision of intellectual property rules.  A major challenge in the EU for many companies is over-regulation and incompatible rules across the region. 

According to The Wall Street Journal, "[m]any European policy makers say the region’s homegrown Internet companies haven’t made the big leagues at least in part because of a patchwork of tax, copyright and e-commerce rules that have stunted their growth. They also point to allegedly unfair business practices by U.S.-based competitors" such as Google.

The European Commission's recent antitrust statement of objections against Google has made some people claim that the EU is acting in a protectionists manner to bolster home grown companies.  While there may or may not be some truth to these allegations, the bottom line is that all entities whether they are digital focused or not, must abide by the rules and regulations of the countries in which they operate. 

Recently, the EU's Competitiveness Council, which gathers European Ministers in charge of economic and industrial affairs, issued its “Conclusions on the digital transformation of European industry”. The Competitive Council's conclusions discussed the EU's recent progress regarding the digital transformation of EU industry and expressed members states' interests and priorities for future action.  Some of the conclusions touch upon the need to develop IT standards for 5G wireless communications, cloud computing, Big Data, the Internet of Things, and interoperability between platforms and technologies. 

These conclusions further emphasized the "importance of ensuring that European standards....are established in coordination with international standards and globally recognised technical specifications and, where possible, promoted as international standards. This is particularly so in such areas as data formats, digital documents and signatures, pan-European e-Procurement, accounting in digital environment and cross-border data exchange...."

The bottom line is that the EU is working feverishly to catch up with other regions of the world such as Silicon Valley and the United States that are perceived to be leaders in the digital economy.  While it may take years for the EU to create and then implement a coherent digital economy strategy, its business and political leaders along with its regulatory bodies have recently acknowledged the importance of these issues.  Therefore, it leads me to believe that the EU will utilize whatever tools at its disposal to be an active participant in the future growth of the international digital ecosystem. 

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

Do You Really Want to Destroy Your Privacy By Using A Social Login?

In general, when signing into a website to check your personal account, you need to use a unique user name/password.  However, for years other sign in options have included to sign in with your Facebook, Google, LinkedIn, etc... account.  This other option is called a social login. 

According to VentureBeat, Google is catching up to Facebook in market share regarding social logins.  Facebook has 43% of the market while Google has 40%.  Social logins have proliferated because companies want to track you for monetization purposes.

I don't use social logins and I don't recommend anyone who values their privacy to utilize social logins.  Facebook and Google are advertising companies that sell your personal data points for profit. Facebook is selling your personal information to data brokers and Google has paid tens of millions of dollars in fines for intentionally misleading users about its privacy practices.

There is no reason to sign into non-Facebook/non-Google websites with a Facebook or Google social login.  These companies may send your personal information to data brokers, insurance companies, the police, employers, etc...

Will 2015 be the year that users wise up and avoid social logins? 

Copyright 2015 by Shear Law, LLC All rights reserved.

California's New Digital "Eraser Button" Law

On January 1, 2015, California's SB 568 Privacy Rights For California's Minors in The Digital World goes into effect.  The bill was signed in September 2013 and gave website operators a little more than a year to ensure that they have the ability to comply with the new law.

In general, SB 568, seeks to protect minors by generally prohibiting operators of digital platforms (such as web sites, online services, online applications, mobile apps, etc...) from knowingly marketing and advertising to a minor a broad range of products specified in the law.  Some of these products may include alcoholic beverages, firearms, ammunition, tobacco products, fireworks, lottery tickets, tattoos, drug paraphernalia.  The new law requires operators of digital platforms to notify minors of their rights to remove content or information they posted and honor their requests to remove such data, subject to specified conditions and exceptions.

At first glance, this new law doesn't appear to have much teeth.  For example, the law doesn't appear to have an enforcement mechanism and it is silent about a private right of action against those who may violate the law.  Therefore, when this new law is allegedly violated how does one go about rectifying the situation?    

While SB 568 may help protect California minors from some digital mistakes that may harm their ability to gain acceptance into the college of their dreams, it should not replace educating our children about the digital issues that they confront every day.

Copyright 2014 by Shear Law, LLC All rights reserved. 

Britain Jails First Revenge Porn Perp

According to The Guardian, the UK has jailed its first revenge porn perpetrator.  Luke King, 21 has been jailed for posting revenge porn online.  He was given a 12-week sentence after pleading guilty to online harassment.

It appears that Mr. King had published naked photos of a woman on WhatsApp earlier this year after threatening her.  On October 13, 2014, I discussed that the UK was set to criminalize revenge porn because it is a growing problem not only in the UK but also around the world. 

While a 12-week sentence may not sound like much for harassing someone online, it may make someone think twice before posting compromising photos of others in the future.  It is too soon to speculate whether the UK's new revenge porn law is a strong enough deterrence.

The law is constantly trying to catch up with technology so it doesn't surprise me that this may be the first case in the UK where someone was jailed for uploading revenge porn.  A major challenge with revenge porn is the likelihood of needing to play a game of whack a mole to remove it from the Internet.  Once content is posted online it is extremely difficult for it to be permanently removed. 

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