ESPN.com's Commenting Policy Harms Personal Privacy and Assists Data Brokers

I love watching the Olympics.  Team USA's gold medal winning performance in men's ice hockey in 1980 inspired me to start playing ice hockey when I was a kid.  In the 1980's, there was a foosball like arcade game that had Team USA v. USSR (CCCP) face off in a mini hockey rink that I enjoyed playing.

While recently reading an ESPN.com article about the latest U.S. v. Russia men's ice hockey game today I decided to review the comments section of the article.  I noticed that ESPN.com has joined other websites in using Facebook's comment platform.  This is unfortunate since Facebook's commenting platform is a threat to personal privacy, the freedom of speech, and it assists data brokers. 

Approximately a year ago, Facebook partnered with data brokers Axciom, Epsilon, Datalogix and Blue Kai to provide them a treasure trove of personal information about its users.  This partnership has greatly deteriorated the personal privacy of Facebook users and their "Facebook Friends".  Therefore, any comment one makes about Team USA beating Russia in the Olympics may then be placed in one's data broker file.  This information may then be utilized to discriminate against those who make a public comment using Facebook's platform.  

Americans have utilized public forums to anonymously comment on issues of the day since at least the time of the Federalist Papers in 1788.  Facebook's comment platform destroys anonymity and deters open public discourse.  Those who utilize Facebook's comment platform may not realize that every comment they make is tied to them forever. 

The bottom line is that social media users may need to become better educated regarding how commercial entities are tracking them online and how data brokers may be a greater threat to our personal privacy, safety, and security than the NSA, a foreign government, or hackers. 

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

New Laws Are Needed To Protect Student Privacy In The Digital Age

Students and schools around the country are utilizing new digital technologies in ways many people did not imagine at the turn of the century and those technologies offer great promise.  Just ten years ago, terms like "big data", "the cloud", "data mining", and "social media" were not well known by students, parents, and school officials.  To lower costs and to help our students learn more effectively, thousands of schools across the country have adopted new digital technologies. Unfortunately, the current legal framework designed to protect student privacy and safety has not kept up with the rapid advancements that have been created by the Digital Age. 

The federal Family Educational Rights and Privacy Act (FERPA) is the main federal law that protects student educational records.  This law was initially enacted in 1974 and has been amended multiple times by Congress; the last time being in 2001 before the widespread adoption of cloud computing and other digital platforms in schools.  While the statute hasn't been amended in more than 10 years, the rules that the U.S. Department of Education uses to implement FERPA have been more recently updated.  Despite these revisions, some public interest groups such as the Electronic Privacy Information Center allege that FERPA's rule changes undermine privacy safeguards set out in the statute and unnecessarily exposes students to new privacy risks.

At first glance, FERPA appears to be a robust law that protects the personal privacy and safety of students.  However, upon closer examination FERPA does not provide the protections that our students need in the Digital Age.  In the almost 40 years since FERPA's initial enactment, no school has been denied access to federal funds due to a violation that has put the personal privacy and/or safety of students at risk.  As more third parties have been contracted to handle student data through the spread of cloud and mobile technologies, FERPA has done little to constrain the behavior of these third parties because the statute does not contain a sanction that applies them. 

Does this mean that FERPA has been successful and that a school's actions have never put the personal privacy and/or safety of students at risk?  Or, does this validate the notion that FERPA lacks strong enforcement provisions and the U.S. Department of Education has not been provided the resources necessary to properly protect our children?

In 2002, the Supreme Court held that FERPA's nondisclosure provisions do not provide students a personal right to sue entities that fail to properly safeguard their educational records.  While this ruling appears to shield schools from student lawsuits based upon FERPA violations, it has also had a very troubling unintended side effect that may be leading some schools to put their guard down when engaging third party vendors to capture, process, and transmit student data. 

History has proved that some commercial enterprises will abuse their access to student data and that FERPA is unable to provide the privacy and/or safety protections our children need and deserve.  In 2003, multiple student survey companies were caught intentionally misleading schools, students, and parents about their data collection and utilization practices.  The FTC alleged that these entities sold personally identifiable information about millions of students to marketers for financial gain.  In addition to entering into a consent agreement with the FTC that ended these practices, the New York Attorney General's office fined these entities $75,000 for their actions.

In 2012, Time Magazine discovered that a company called UDiligence that had been hired by universities across the country to scan and archive the password protected personal digital content of student-athletes was abusing its access to student data by utilizing personal student content in advertisements for the company's services.  Only after Time Magazine questioned this practice did UDiligence stop monetizing students' personal digital content for pecuniary gain.

Several months ago, a judge in a lawsuit that accuses Google of violating multiple federal and state laws regarding its email data mining practices ruled that the case may move forward.  During a recent court filing in this lawsuit, Google admitted that its University of Alaska school branded Gmail system utilizes the information obtained from student emails for advertising purposes (Link to this document; See page 42, #88).  As part of an effort to dismiss the case, Google argued that two student plaintiffs from universities who were Google Apps for Education users consented to Google scanning their emails for advertising purposes when they signed onto the service the first time (Link to this document; See page 14).

Since Google provides this same exact service for free to thousands of schools across the country it raises a serious question of whether Google is data mining the school emails of millions of students across the country for financial gain.  Do the same arguments that Google has made in its motion to dismiss, that students have consented to this data mining, apply to students at other schools where Google Apps for Education is in use?  It does not appear that students, parents, and/or teachers have been informed and provided consent that would enable their digital interactions and the content sent and received on school contracted Gmail services to be utilized for advertising purposes. 

The personal safety of students are at risk when commercial entities obtain access to student data and act upon the information.  According to Education Week, some low-income children in Arizona were subjected to unnecessary dental work by corporate-affiliated "mobile dentists" who found their patients through easy access to school records.  In response to this troubling practice, Arizona enacted a new state law last year that tightened access to this information.

Several months ago, The New York Times discussed the privacy and safety challenges inherent when schools hire third parties to collect and store student data on the web.  A recent Fordham University Law School study found "weaknesses in the protection of student information in the contracts that school districts sign when outsourcing web-based tasks to service companies".  Fordham's findings were validated by the Maryland Attorney General's 2013 report on children's privacy that recommended a new state law that would prohibit cloud service providers from using data collected from students for commercial purposes.

Parents are extremely worried about their children's personal privacy and safety.  A new Common Sense Media Survey found broad support for stronger safeguards to protect our students in the Digital Age.  According to the survey, 91 percent of respondents support stronger parental-consent requirements related to the sharing of sensitive student data, and 89 percent supported tighter security standards for cloud storage.

Since FERPA has not been updated to reflect the tremendous change the Digital Age has brought to the education system, it is time for states to enact laws that better protect the personal privacy and safety of our students.  States should enact strict prohibitions on the use of student data (i.e.  emails, documents, or other content), ensuring that vendors do not have rights to use that data for advertising or marketing purposes or to otherwise build personal profiles of students that may be utilized to discriminate against students and/or their families.  Parents and students need to know that when they utilize school provided digital communication platforms their data is safe and secure and will not be used to prey upon their economic and/or personal situation.

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

White House Announces Big Data and the Future of Privacy Comprehensive Review

On the White House Blog earlier today, John Podesta, a Counselor to the President provided further details about the comprehensive privacy review that the President recently asked him to undertake.  In the blog post, it stated that Mr. Podesta would lead a "comprehensive review of the way that “big data” will affect the way we live and work; the relationship between government and citizens; and how public and private sectors can spur innovation and maximize the opportunities and free flow of this information while minimizing the risks to privacy."

Mr. Podesta will be joined by Secretary of Commerce Penny Pritzker, Secretary of Energy Ernie Moniz, the President’s Science Advisor John Holdren, the President’s Economic Advisor Gene Sperling and other senior government officials.  The working group will consult with stakeholders such as members of industry, civil liberties groups, academics, privacy experts, and government officials.  

This effort is suppose to begin during the next 90 days and help develop the national conversation regarding the issues surrounding the usage of "big data" and the privacy implications inherent with new digital technologies. 

I believe this is a positive development that will help shape future public policy decisions.  In order to continue to flourish, democracies require transparent discussions about the important issues that affect their citizens.

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

9th Circuit Court of Appeals Rules Bloggers Have First Amendment Protection

I blog to share information that I believe may assist others in their quest for knowledge about the legal, business, and public policy issues that affect digital media users. I exercise my First Amendment rights when I believe there is an issue that is important and newsworthy for my readers.

When I blog, I research my proposed article, write, and edit my work just like journalists who work at large well-established media outlets.  Therefore, I believe those who post online should receive the same type of legal protections against lawsuits that are afforded professional journalists.

I am not the only one who believes in strong protections for online commentators.  In a huge win for the freedom of speech, the 9th U.S. Circuit Court of Appeals recently ruled that bloggers have the same First Amendment protections as journalists when sued for defamation.  This is an important milestone in the legal landscape for digital speech rights.

A very important cornerstone of democracy is a free press.  This new decision has its roots in the famous John Peter Zenger acquittal in 1735.  John Peter Zenger was accused of libel and a jury returned a verdict of not guilty.  Andrew Hamilton became famous for his defense of Zenger and his quote, "truth is a defense against libel". 

The bottom line is that bloggers and other digital content creators now have greater legal protections.  While some people may not like this ruling due to the potential cyber bullying side effects, this decision helps protect freedom and the free flow of ideas that are so important in a democracy.  There are too many people in this world who either threaten legal action and/or take legal action via strategic lawsuits against public participation to silence their critics.  If this ruling stands, it will help protect those who expose fraud and other illegal activities via digital commentary.

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

FTC Settlement: Apple to refund $32 million dollars for children's in-app purchases

Yesterday, the FTC announced that Apple will provide full consumer refunds of at least $32.5 million dollars to settle an FTC complaint that it charged for kids' in-app purchases without parental consent.  This settlement demonstrates that the FTC is continuing to protect our children and families against potential unfair and misleading trade practices in the digital space.

The FTC complaint alleged Apple violated the FTC Act by failing to tell parents that by entering a single password they were consenting to an in-app purchase.  In particular, it was alleged that parents (account holders) were not informed that entering their password would open a 15-minute window in which children can incur unlimited charges. Under the Consent Order, Apple is required to change its billing practices to ensure that it has obtained "express, informed consent from consumers" before billing for items sold in mobile apps.

The FTC's mobile apps for kids reports put mobile app developers and ecosystem owners on notice that the FTC is watching the entire space to protect children and families from unfair and deceptive trade practices.  This new enforcement action combined with the FTC's previous activities reinforces the notion that the mobile environment contains serious personal privacy and safety issues along with potential unfair trade practice issues that need to be addressed.

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

Canadian Teen Convicted of Sexting Child Pornography

A Canadian teenager was recently convicted of sexting pornographic photos.  According to CNN, a teenage girl was found guilty of distributing via text pornographic photos of her boyfriend's ex-girlfriend.

This case appears to have occurred because a teenager became jealous that her boyfriend was still in contact with his ex-girlfriend.  According to prosecutors, the convicted teenager initially threatened her boyfriend's ex-girlfriend on Facebook.  The defendant then allegedly texted five naked photos of the ex-girlfriend that she found on her boyfriend's cell phone to several other people.  The prosecutors examined approximately 36,000 texts during the investigation.  The parties involved in this matter were approximately the same age. 

This appears to be an unfortunate situation that before the Social Media Age would never have occurred.  In general, child pornography laws were intended to stop those over the age of majority (in general 18 years of age) from exploiting minors. Does this case demonstrate a need to re-examine child pornography laws? 

Due to the proliferation of cell phones and mobile apps that make sharing images (i.e. photos and videos) extremely easily, it is imperative that teenagers learn about the legal issues inherent with social media usage.  Unfortunately, it would not surprise me if these cases become more common in the future. 

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

Digital Miranada Warning: IAC Executive Learns The Hard Way That You Have the Right To Remain Silent Online

Too many people don't understand the power of social media.  Fortune 500 executives, professional athletes, student-athletes, students, entertainers, politicians, etc... have all gotten into hot water because of their digital usage.  I regularly counsel members of these groups about the legal, business, and reputational challengers inherent with social media and other digital communication tools and it pains me whenever I hear about someone posting something online that may destroy their professional career. 

The latest Tweet that has gone viral and may be a career killer was posted on an account allegedly utilized by pr executive Justine Sacco of IAC.  She allegedly wrote while en route to Africa, "Going to Africa. Hope I don't get AIDS.  Just Kidding.  I'm white!"  By the time Ms. Sacco's plane landed, this message on her account went viral and caused a pr nightmare for herself and her employer IAC.

Too many self styled "branding experts", "social media consultants", etc.. advise people to share too many personal opinions online.  I disagree with this advice and generally agree with Mark Twain's adage, " [i]t is better to remain silent and be thought a fool than to open one's mouth and remove all doubt."

It is better to remain silent and be thought a fool than to open one's mouth and remove all doubt.
Read more at http://www.brainyquote.com/quotes/quotes/m/marktwain103535.html#STC0rGBGPI5OUGP7.99

It is better to remain silent and be thought a fool than to open one's mouth and remove all doubt.
Read more at http://www.brainyquote.com/quotes/quotes/m/marktwain103535.html#qG8bQHKbUMwqmy7s.99

It is better to remain silent and be thought a fool than to open one's mouth and remove all doubt.
Read more at http://www.brainyquote.com/quotes/quotes/m/marktwain103535.html#qG8bQHKbUMwqmy7s.99

Internet users may want to learn about my Digital Miranda Warning that is a take off of the criminal law Miranda Warning that suspects are provided. The Miranda Warning states, "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak with me?"

My Digital Miranda Warning sates, "You have the right to post online.  Anything you post online can and will be used against you by employers, schools, the media, etc....  You have the right not to post online.  If you feel compelled to post, don't upload anything that may make you look unprofessional.  With these rights in mind, do you still wish to post online?"

While my Digital Miranda Warning has saved some of my clients from digital career destruction, my hope is that more people become educated about the risks associated with utilizing social media before their online behavior destroys their reputation.

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

Snapchat iOS Update May Be A Danger To Privacy

Privacy is in vogue.  I believe Mark Zuckerberg's so called "Law of Information Sharing" is dead. While we as a society may continue to share more information online via social media, the cloud, apps, email, etc... people are more aware of the dangers of sharing too much so they are changing their behavior accordingly. 

Facebook recently admitting that younger teens are using their platform less.  Why? The answer is debatable; however, I believe it has something to do with parents, employers, schools, the police, governments, etc... wanting access to their personal digital content.  To help users believe the content they send online is safe from prying eyes multiple apps and other digital services have popped up that claim that user privacy is built in by design.  One of the most popular apps that claim they are built with privacy in mind is Snapchat.

Snapchat has become so popular that it was recently reported that Facebook tried to acquire the company for $3 billion dollars and Google may have offered $4 billion dollars.  There are allegedly 400 million snaps (images sent via Snapchat) received daily on the platform apparently because users believe their content is safer sent via Snapchat than through other services.

While Snapchat offers some better privacy protections than other content sharing apps due to its allegedly disappearing photo offering, its latest iOS update Replay feature actually endangers user privacy by allowing an image to be re-viewed at a later time.  In general, when opening a snap you don't have another image capturing device handy to take an image of the snap being viewed.  Usually, one opens a snap and it disappears after several seconds.  No harm, no foul unless the receiver has another image capturing device handy.  With the new Replay option enabled, if someone sends a  nude selfie or other potentially scandalous image, the receiver now may have plenty of time to have another device ready to capture the image.

Before this iOS update, images sent via Snapchat could be re-purposed beyond their intended usage and there have been some publicized incidents of snaps creating problems for those in the image(s).   For example, a Missouri mom is in legal trouble and was recently charged with endangering the welfare of a child (one of her kids) due to a topless photo her daughter took of her that was sent via Snapchat.  This case demonstrates the potential dangers users may encounter when taking personal photographs/videos and disseminating the images via digital platforms; even through Snapchat.

Providing a "second bite at the apple" to view content that a user has deemed "Snapable" or more private than images shared via Facebook is a danger to privacy.  Once content is digitized, it can potentially be sent anywhere in the world and saved for an infinite period of time.  Allowing more opportunities to view potentially scandalous content may put users' privacy at risk.

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

Sextortionist jailed for sexual cyber blackmail

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

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

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

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

FTC Settles Charges Android Flashlight Mobile App Deceived Users

The FTC is continuing to crack down on companies that are intentionally misleading their users about privacy issues.  According to the FTC, the "Brightest Flashlight" app shared users' location, and device ID without their users' consent. Goldenshores Technologies, LLC was behind the app and this enforcement action appears to be the first involving geo-location data obtained from mobile devices.

The FTC put the mobile ecosystem on notice almost 2 years ago about their privacy concerns.  For example, in February 2012, the FTC issued a mobile privacy report that was focused on children and did a follow up titled Mobile Apps For Kids Report in December 2012.  These investigations demonstrated that some industry players needed to do a better of protecting their users' privacy.  The FTC released another report in February 2013 that reinforced the importance of these issues.  In July 2013, the National Telecommunications and Information Administration (NTIA) published a draft of self-regulatory guidelines for privacy notices for mobile app and the Digital Advertising Alliance released a best practices guide for its members.

The FTC's announcement of this action is very timely considering that the lead article on the front page of today's Washington Post discussed how the NSA tracks cellphone locations worldwide.  A major problem with Goldenshores' app was that it did not disclose that user information would be "sent to third parties, such as advertising networks."  Another problem with the app was that before a consumer could choose to accept its terms and conditions, it began collecting and sending the potential users' personal information to third parties.

To view the settlement here is the link.  Public comments will be accepted through January 6, 2014. To contact the FTC regarding this matter here is the link.  Mobile app creators must be transparent and honest with their customers about the information that they collect and re-purpose. I make a personal choice to avoid many apps due to the privacy issues inherent and it would not surprise me if more mobile app companies incorporate privacy into the design of their products in the near future.

With access comes responsibility.  The more information a mobile app maker collects about their users the more information that the NSA and/or other government entities may be able to collect and utilize.  Apps and mobile ecosystems that are collecting a lot of information about their users are not only harming their users' personal privacy but also making it easy for the NSA to spy on their users.

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

Are States Taking The Lead to Enforce Digital Privacy Laws?

Recently, 37 states and the District of Columbia reached a $17 million dollar settlement with Google over its intentional circumvention of Internet users' privacy settings.  The case stemmed from "Google's bypassing of privacy settings in Apple's Safari browser to use cookies to track users and show them advertisements in 2011 and 2012."  This multi-state agreement followed Google's $22.5 million dollar settlement with the Federal Trade Commission over the same practice.  In total, Google has paid approximately $40 million dollars to federal/state regulators for intentionally harming the personal privacy rights of Internet users in this matter.

Google's ability to circumvent Apple's Safari browser setting was uncovered and publicized by the Wall Street Journal on February 17, 2012.  According to the Wall Street Journal's investigation, Google and several other advertising "companies used special computer code that trick[ed] Apple's Safari Web-browsing software" into letting them track the web-browsing habits of users who tried to protect their personal privacy.  After the Wall Street Journal contacted Google about its alleged illegal activities the company disabled the code.  However, why did the Wall Street Journal need to contact Google in order for it to stop violating the personal privacy rights of Internet users?

In 2011, the FTC "resolved charges that Google used deceptive tactics and violated its own privacy promises to consumers when it launched its social network, Google Buzz."  In 2012, Google paid a $7 million dollar fine to 38 states for privacy violations regarding its Street View project which collected "passwords, e-mail and other personal information from unsuspecting computer users."   Earlier this year, a lawsuit was allowed to proceed that, "alleges that Google illegally scanned emails for users of Internet service providers who used a self-branded version of Gmail, as well as for Google Apps for Education users".

While the focus of the state attorney generals and FTC investigations regarding this privacy matter have been on consumers why hasn't there been media attention on how Google's actions may have harmed students who utilized school provided Apple products?  In 2011, the New York Times discussed how thousands of students across the country were utilizing iPads because of special pilot programs and multi-million dollar government grants.  

Did Google intentionally disable the privacy settings on tax payer funded and/or government owned student iPads and other Apple products that use Safari browsers to track student interactions with teachers and/or other students for pecuniary gain?  How many students had their privacy rights violated by Google while utilizing school provided Apple products?  If a student surfing the web using Safari was logged into a Google account (i.e. Gmail, YouTube, Google +, Blogger, etc...) all of his school related web usage may have been tracked and monetized by Google.  Did Google's behavior violate the Family Educational Rights and Privacy Act (FERPA)?  Why hasn't the Department of Education  opened an investigation into this matter?

If Google intentionally disabled the privacy settings of Internet users who chose to utilize a competitor's product (i.e. web browser Safari instead of Google's Chrome) how can Google be trusted to respect and protect the personal privacy of those who utilize Google products?  While Google has claimed it does not show ads by default to student users of its Google Apps For Education services, how can parents, guardians, teachers, and school administrators be sure that Google isn't still collecting, combining, and monetizing student data behind the scenes since it has been fined millions of dollars multiple times for violating the privacy rights of users in the past?

Sweden appears to have lost faith in Google's privacy promises and is requiring a municipality in Stockholm to rework its Google Apps For Education Agreement to better protect student data or its schools will be required to stop using Google's services.  Should Sweden's students have more privacy protections than those in the United States?

In Google's settlement agreement with 37 state attorney generals it lists in Appendix A the state consumer protection statutes/computer abuse statutes that Google allegedly violated.  Since some of these statutes may be utilized in conjunction with the federal U.S. Computer Fraud and Abuse Act (CFAA) when digital wrongdoing is alleged why hasn't the Department of Justice (DOJ) opened an investigation into this matter?  Shouldn't the DOJ at least investigate these issues with the same vigor that resulted in Google forfeiting $500 million dollars due to its actions that enabled its users to unlawfully import controlled and non-controlled prescription drugs into the United States that may have violated the Federal Food, Drug and Cosmetic Act and the Controlled Substances Act?

State attorney generals are utilizing their powers to hold Internet companies accountable for online violations of state law.  While the FTC is increasing its Internet enforcement activities, it is imperative for all interested parties to work in conjunction to ensure that those companies that break state and/or federal digital privacy laws are held accountable for their actions.

 

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

Vietnam Enacts Law To Fine Social Media Critics

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

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

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

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

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

Do Not Track Kids Act of 2013 Would Amend COPPA

Senator Ed Markey and Rep. Joe Barton have reintroduced House and Senate versions of their Do Not Track Kids Act, which would extend the Children's Online Privacy Protection Act of 1998 (COPPA) protections for "collection, use and disclosure of children's personal information" to teenagers 13-15.

The legislation would:  prohibit Internet companies from collecting personal and location information from anyone under 13 without parental consent and anyone 13 to 15 years old without the user's consent; require consent of the parent or teen prior to behavioral advertising to children and teens; establish a "Digital Marketing Bill of Rights for Teens" that limits the collection of personal information of teens, including geo-location information of children and teens; create an "eraser button" for parents and children by requiring companies to permit users to eliminate publicly available personal content when technologically feasible; and require digital companies to explain the types of personal information collected, how that information is utilized, and the policies for collection of personal information.

While I am not generally in favor of stricter regulations on the digital ecosystem that may potentially put greater constraints on how Internet companies may operate, the data collection and privacy policies of some companies have crossed the line and appear to require greater legal scrutiny.  According to a recent USA Today article about digital privacy and young people, "....the NSA can tap into online data to the extent it does largely because commercial companies, led by Google and Facebook, pursue business models that treat consumer privacy as a free profit-making resource."

The bottom line is that some companies have abused their marketplace position and it appears that a legislative fix is needed to protect our children from companies that put profits ahead of privacy.

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

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

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

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

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

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

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

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

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

Penn State Sex Abuse Scandal Costs Approach $200 Million Dollars Due To Digital Evidence

The Jerry Sandusky sex abuse scandal at Penn State was horrific.  More than 2 dozen young men were molested by former Penn State football coach Sandusky.  Their lives were forever changed because it appears that some members of the Penn State community tried to cover up the situation instead of stepping in to help those abused.

Last year, a jury found Sandusky guilty of 45 charges of sexual abuse and he will most likely spend the rest of his life in prison.  The fallout from the matter has included numerous lawsuits against Penn State.  Earlier today, Penn State announced that it had agreed to pay almost $60 million dollars to 26 plaintiffs who alleged they were molested by Sandusky.

It was also recently disclosed that Penn State has so far spent more than $50 million dollars in legal fees and fines defending its conduct in this matter and the university still owes $48 million dollars of a $60 million dollar fine to the NCAA. While it is too soon to speculate on the overall economic loss to the entire Penn State community, this cost may reach hundreds of millions of dollars.  While we may never be able to fully measure the precise human toll this scandal has caused, we can put a ball park figure on the economic toll so far and it appears to be north of $150 million dollars ($60 million dollars in settlements, $50 million dollars in legal fees/fines, etc.., $48 million dollars over the next 4 years in NCAA fines).

Strong eye witness testimony at trial that Sandusky was a sexual abuser appears to have swayed the jury.  Interestingly, there was not much evidence that appeared to demonstrate that Penn State knew or should have known that they were allowing a child molester to roam free throughout its football facilities.  The main evidence that appears to prove Penn State officials turned a blind eye to Sandusky's illegal activities was a handful of emails more than ten years old.

On November 10, 2011, I warned that the Sandusky scandal may cost Penn State more than $100 million dollars.  On June 30, 2012, I wrote, "[d]igital evidence from eleven years ago may be the smoking gun that demonstrates that Penn State knew about Sandusky but intentionally did nothing to stop Sandusky...."  On July 23, 2012, I stated, "[i]t appears that this scandal may end up costing Penn State closer to $150-$200 million dollars now that the NCAA has taken unprecedented action.

Many of the social media monitoring companies that approach schools lie about their founder's background/experience and/or monetize the personal student data they are collecting.  Schools that engage these social media monitoring companies may be on the hook for tens or hundreds of millions of dollars in legal liability if they continue to engage these companies.

The Obannon vs. NCAA case demonstrates that schools are very vulnerable to legal liability issues regarding a student-athletes' image and likeness rights.  The Obannon case along with the Penn State sex abuse scandal should put schools and the NCAA on notice that once they are aware of an issue but do not act to properly resolve it they may be liable for tens or hundreds of millions (or more) of dollars in damages. 

Schools that utilize social media monitoring services to track their student-athletes' and/or employees' personal digital activities are treading on thin ice.  Engaging these companies may not only lead to lawsuits, but to punative damage settlements that are designed to deter this behavior in the future.  Does every school need to experience a major scandal before realizing the legal liability issues inherent with digital evidence?
  
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