China's Internet Policy Should Not Be Followed By NCAA Athletic Departments

China is a communist country and enacts laws that are designed to keep its political system intact.  Many countries enact legislation that is designed to keep the power status quo.

The United States' First Amendment provides its citizens the strongest freedom of speech protections available in the world.  It states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Even though our First Amendment rights have some limitations, our ability to be able to be anonymous when speaking is well grounded in our history.  China recently enacted legislation that strips its citizens of these rights online.  While this law may be acceptable in China it has no place in the United States.

Unfortunately, some NCAA schools are following China's lead and believe it is legal to require its student-athletes to register their digital usernames and/or passwords and/or download cyberstalking software onto their personal accounts and electronic devices to keep their scholarships and/or participate in intercollegiate activities.

There is no valid reason for any public academic institution to require their students to provide their social media credentials to play intercollegiate sports.  These types of policies have no place in the United States.  At least 4 states have recently enacted legislation to ban this activity and Congress has introduced a ban on this practice.

To learn more about these issues you may contact me at www.shearlaw.com.

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

Instagram, Facebook, and Social Media Terms and Conditions

Instagram was sold to Facebook earlier this year for $1 billion dollars.  Facebook didn't buy Instagram to make its founders wealthy, it bought Instagram to monetize its users' content.  Facebook expects to monetize Instagram in the same manner it is making money off of its users' content.  This is why Facebook changed Instagram's terms and conditions last week.

Immediately after Instagram updated it terms and conditions, its users became very angry.  Despite, Instagram's claim otherwise, its new terms of service greatly expanded its rights to utilize its users' content and unlike Facebook's terms and conditions, Instagram appeared to provide itself in perpetuity the right to monetize its users' content even after a user deleted his account. 

Facebook and Instagram provide services that enable people and brands to interact with each other. In return for using their platforms, Facebook and Instagram have a right to utilize the information uploaded to make money off of the intellectual property contained on their websites.  To better understand this one should review Facebook's terms and conditions that states, "you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook."  

However, Facebook clearly states, "This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.  Interestingly, it did not appear that Instagram included this sentence in their proposed updated terms and conditions. 

Should Instagram's users be surprised at its decision to push the envelope on monetizing its users' content?  Since Facebook owns Instagram, is Facebook using Instagram as a testing ground to determine how far they can go with monetizing their users' content before their users revolt?  I discussed these issues with Bloomberg Television at the height of this news cycle: The complete fallout from this matter is still yet to be determined. Even though there is a new report that states that Instagram has lost approximately 25% of its daily active users since its announcement that it would change its terms and conditions, it is too soon to speculate if the updated terms and conditions is the main factor. It may be advisable to read the terms and conditions of every digital platform utilized so you don't become a Human Centipad.

To learn more about these issues you may contact me at www.shearlaw.com.

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

Should Facebook Be Held Accountable For Allegedly Hosting Ads For Counterfeit Merchandise?

The Digital Age and now the Social Media Age has had a significant effect on traditional methods of protecting intellectual property.  Sports brands and athletes may be losing hundreds of millions and possibly billions of dollars a year due to fraud and the misappropriation of their digital image and likeness.  Stopping the problem is like playing whack-w-mole in your local arcade.  When you think you have hit every target another one appears.

Every couple of months there seems to be another story how law enforcement has seized websites and/or counterfeit merchandise.  Last year, when I read that Google paid a $500 million dollar fine to avoid prosecution that it knowingly accepted advertising that was against the law I wondered if Facebook had a similar problem.  I started to pay closer attention to the ads that were appearing on my Facebook account and soon realized that Facebook may be accepting ads for counterfeit merchandise.  

I have seen a tremendous number of ads for allegedly counterfeit merchandise on Facebook and I have discussed this issue with others, including the media.  Generally, Internet platforms are not liable for the content that is posted on their websites.  However, if a digital platform is put on notice about a problem and does not take reasonable steps to resolve it then it may have potential legal liability.

Does the law need to be updated?  Does enforcement need to be increased?

To learn more about these issues you may contact me at www.shearlaw.com.

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

FTC To Kids' Mobile App Developers: More Transparency Needed

On December 10, 2012, the Federal Trade Commission issued its 2012 Mobile Apps for Kids: Disclosures Still Not Making the Grade report.  The overall theme of the report is that mobile app developers need to be more transparent about how they utilize the information they collect.  The report found that "many apps included interactive features or shared kids' information with third parties without disclosing these practices to parents."

This survey was a follow up to the FTC's February 2012 report Mobile Apps For Kids:  Current Privacy Disclosures are Disappointing.  In February 2012, the FTC's overall finding was that "little or no information was available to parents about the privacy practices and interactive features of the mobile apps surveyed prior to download".

Both of these reports demonstrate the need for the mobile apps industry to become more proactive to avoid greater regulation.  Even though the Mobile Marketing Association (MMA) has been trying to self-regulate through its privacy policy guidelines and other initiatives, it appears that many app developers have not followed the MMA's guidelines. Since it appears that many app developers have not been following the MMA's guidelines the FTC appears ready to act.

The FTC's mobile apps privacy reports appear to provide the evidence that an update to the Children's Online Privacy Protection Act (COPPA) is needed.  While these reports appear to indicate that our children's digital privacy needs to be better safeguarded, there have been concerns from Silicon Valley and Hollywood on the depth and breadth of the FTC's proposed updates. According to the New York Times, Apple, Facebook, Google, Microsoft, Twitter, Viacom, and Disney are some of the companies who have objected to some of the proposed updates to COPPA that have been submitted.    

In general, many people don't understand how mobile applications collect and utilize the data that they acquire.  Unfortunately, due to a lack of information available many parents and children may not be able to make informed decisions about how best to protect their digital privacy.  This lack of information may be caused by a lack of transparency.  For example, the new FTC report it found that "20% (81) of the apps reviewed linked to general disclosure information, including a privacy policy" (page 7).  While this is an improvement over the 16% (64) figure that was reported in the FTC's prior mobile apps privacy report, more transparency is needed so that parents and children may better understand how their personal information is being utilized by others.

Consumers have tremendous concerns about mobile data privacy.  For example, according to a September 2012 Pew Study, "54% of app users have decided to not install a cell phone app when they discovered how much personal information they would need to share in order to use it and 30% of app users have uninstalled an app that was already on their cell phone because they learned it was collecting personal information that they didn't want to share."  

The bottom line is that parents and children need to be provided more information regarding what personal digital data is collected and how it is utilized.  If a parent determines that it is acceptable for an app to collect and re-purpose his child's personal digital data that is his perogative.  However, that is a personal decision that is best handled by a parent.  Unless the moblie apps industry is able to effectively police itself and provide parents the information they need to make informed decisions about their children's digital privacy, more regulations are needed.

To learn more about these issues you may contact me at www.shearlaw.com.

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

Tweeted Photo of Sex Abuse Victim Leads To Arrests

Sexual abuse is one of the worst crimes imaginable.  Abusers and rapists prey on those who are vulnerable and some of the perpetrators may do so because there is a good chance they may never be caught.

According to the Bureau of Justice, between 1992 and 2000 only 36 percent of rapes, 34 percent of attempted rapes, and 26 percent of sexual assaults were reported. Therefore, it appears that the majority of of sexual abuse is not reported and those who commit these crimes are never prosecuted.

In a very troubling case in New York City, four men were arrested for allegedly using an iPhone to take a photo(s) of a sexual abuse victim who was testifying and then uploading the photo to Twitter.  It appears that the four men who were arrested may be supporters of the defendant in the case.  

This situation demonstrates the need for the court system to create a unified digital device policy for everyone who participates in criminal and civil proceedings.  I have blogged about related digital device issues over and over so my hope is that eventually the entire court system will become more aware of the potential danger of not creating reasonable social media and digital device policies.  

To learn more about these issues you may contact me at www.shearlaw.com.

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

New York City Jury: YouTube Promise Costs Rapper $1 Million Dollars

Earlier this week, a musician testified in a New York court proceeding that he reneged on a promise he made to pay the person who found his missing laptop $1 million dollars. What makes this promise interesting is that the musician (Ryan Leslie) made the promise via a YouTube video.   The New York Post reported that Mr. Leslie tweeted his video to gain as much attention for his missing laptop as possible in the hopes that it would be returned.

Yesterday, Mr. Leslie was ordered to pay the $1 million dollar reward that he refused to honor.  The bottom line is that while utilizing social media if you are prepared to talk the talk you better also be willing to walk the walk or in this case pay the piper.  

To learn more about these issues you may contact me at www.shearlaw.com.

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

U.S. Senate Judiciary Committee: Warrant Needed To Read Email

Privacy law may soon catch up with the reality of the Digital/Social Media Age.  Today, the U.S. Senate Judiciary Committee voted to amend the Electronic Communications Privacy Act (ECPA) to require that law enforcement officials obtain a warrant  before they access a suspect's personal digital account.

This is the first step in what may become a fundamental change in digital privacy for the United States.  The amendment still needs to be passed by the full Senate and then be passed in the House of Representatives and signed into law by President Obama.

While I am hopeful that Congress will act to strengthen privacy laws it is frustrating that it appears that the General Petraeus scandal may have been the catalyst for this issue.  The ECPA amendment was attached to HR 2471 which will update the Video Privacy Protection Act.

The bottom line is that if HR 2471 becomes law a warrant will be required to read one's personal digital communications.

To learn more about these issues you may contact me at www.shearlaw.com.

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

Is it a crime to intentionally Tweet false news on Twitter?

Hurricane Sandy will go down as one of the worst natural disasters in American history.  According to the latest news reports, more than 100 people have died from the storm and economic damages may surpass more than $50 billion dollars.

To make matters worse, looters have made some people afraid to leave their homes to obtain much needed supplies.  As a former New Yorker, my heart goes out to my friends and former neighbors who are dealing with this terrible tragedy. 

During the storm, many people were Tweeting and posting content online.  Some people were making predictions about the storm, others were discussing their greatest fears about the storm, some were asking for help, and others were Tweeting intentionally false and misleading information.  Were all of these posts protected by the 1st Amendment? 

One of those people who were allegedly making false and misleading Tweets during the storm was Shashank Tripathi.  For example, one of Tweets stated, "BREAKING: Confirmed flooding on NYSE. The trading floor is flooded under more than 3 feet of water."  This was an intentionally false Tweet.  However, intentionally misleading Tweets are generally protected under the 1st Amendment. 

New York City Councilman Peter Vallone, Jr. has stated that he has asked the Manhattan District Attorney to look into filing charges against Tripathi for his Tweets.  Under Brandenbury v. Ohio 395 U.S. 444 (1969), the Supreme Court held that the government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite imminent lawless action.  In addition, under U.S. v. Alvarez 132 S.Ct 2537 (2012) lying in some situations is constitutionally protected free speech. Was Mr. Tripathi's Tweets or online posts by others directed to inciting and likely to incite imminent lawless action?  Most likely not. Was Mr. Tripathi lying? It appears he was misrepresenting the truth.   

Regulating free speech is a very slippery slope.  During Hurricane Sandy, social media helped bring out the best in people and it has also has brought out the worst in others.  However, the storm should not be utilized as a reason to further regulate speech. 

To learn more about these issues you may contact me at www.shearlaw.com.

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

New York City, Hurricane Sandy, and Social Media

My hearts and prayers go out to the families of those who perished because of Hurricane Sandy.  The hurricane and its aftermath may end up costing at least $50 billion dollars in damage.  In addition, the media is reporting that at least 50 people lost their lives due to this storm.

Sandy knocked offline popular websites Gawker, Huffington Post, and Deadspin. At this point, it is too early to fully calculate all of the damage done from this horrific storm.  In the comming days, weeks, and months there may be a better assessment of how this storm has affected those living the path and wake of Sandy.

I could discuss the importance of utilizing the cloud to back up data, or how social media can save lives.  However, as a former resident of New York City and one who became homeless after 9/11, I understand now is not the right time to talk about how social media or other digital technologies can be utilized to help lessen the effects of future calamities.   

The bottom line is that New York City is the toughest city in the world and it will get through this and become stronger by doing so.  The lessons learned from this terrible tragedy may help avert some of the same problems from happening again in the future.

To learn more about these issues you may contact me at www.shearlaw.com.

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

Does Facebook Have A Problem With Ads For Counterfeit Merchandise?

Facebook is scheduled to release its earnings tomorrow.  Will Facebook meet or beat market expectations?  I don't want to speculate on its earnings report, but has Facebook's revenues been manipulated by ads for counterfeit merchandise?

According to CBS News, the company makes about $5 a year on each user.  Is this number inflated due to advertising revenue received from companies who are hawking counterfeit merchandise on Facebook?

Does Facebook have a Google pharma ad problem on its hand?  In 2011, Google agreed to pay a $500 million dollar fine to avoid prosecution due to displaying advertisements from Canadian pharmacies which illegally sold prescription drugs to American consumers.  An important question in the Google case was did it intentionally turn a blind eye to the matter?  Is Facebook intentionally turning a blind eye regarding advertising for counterfeit merchandise on its platform?

To learn more about these issues you may contact me at www.shearlaw.com.

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

European Union May Require Google To Change Its Privacy Policies

According to Reuters, the European Union has sent Google a letter demanding changes to Google's new privacy policy to better protect the personal data of its users.  The Guardian is reporting that Google may be told on Tuesday to revisit the controversial changes introduced in March.

On January 24, 2012, Google announced that as of March 1, 2012, it would revamp its privacy policies.  At the time of its announcement, Google stated that it had more than 70 privacy policies and that it is "rolling out a new main privacy policy that covers the majority of our products and explains what information we collect, and how we use it, in a much more readable way. While we’ve had to keep a handful of separate privacy notices for legal and other reasons, we’re consolidating more than 60 into our main Privacy Policy."  .... "Our new Privacy Policy makes clear that, if you’re signed in, we may combine information you've provided from one service with information from other services."

Streamlining almost 70 privacy policies into 1 policy is much easier for compliance and legal purposes since it means that Google will only have to keep abreast of 1 uniform policy instead of more than 60.  In other words, the change may decrease legal and compliance costs by millions of dollars per year.  The new Privacy Policy states that Google may combine all of its users' information into one profile that may enhance its data mining capabilities which may increase its advertising revenues by hundreds of millions of dollars per year.  Of Google's $37.9 billion in 2011 revenue, 96 percent came from advertising.

Before Google's new privacy policy went into effect, France's data protection authority, the CNIL, told Google in a letter dated February 27, 2012 that it would lead a Europe-wide investigation of the new policy.  Soon after Google implemented the changes there was an uproar about the matter.

Since Google refused to heed the EU's prior warnings that changing its privacy policies may violate data protection laws it would not surprise me if the CNIL harshly rebukes Google and "recommends" it change its privacy policies and is "asked" to better inform its users on how it utilizes their personal data.  However, until the decison is made public it would be premature to speculate how this may affect Google and its advertising clients. 

To learn more about these issues you may contact me at www.shearlaw.com.

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

California is the first state to enact comprehensive social media privacy legislation

Governor Jerry Brown of California has announced that he has signed California SB 1349 and California AB 1844.  California has now become the first state in the country to enact comprehensive social media privacy legislation.

Earlier this year, Maryland became the first state to enact social media privacy legislation that protects employees' digital privacy while also protecting employers from frivolous social media related lawsuits.  Soon after, Delaware enacted social media privacy legislation that protects college students and post-secondary schools. In August, Illinois enacted legislation that protects employees and employers.

With the enactment of California's SB 1349, California becomes the second state to protect the social media privacy of post-secondary students which may also protect California schools from frivolous social media related lawsuits and snake oil salesmen who are pitching schools on the need for costly social media monitoring programs that are legal liability time bombs.  On August 21, 2012, I stated,
"If SB 1349 is enacted, it may protect California schools from millions of dollars in additional compliance and regulatory costs, and millions of dollars in potential legal liability costs associated with social media related lawsuits."

With the enactment of California's AB 1844, California becomes the third state to protect the social media privacy rights of employees which may also protect California employers from frivolous social media related lawsuits.  On August 30, 2012, I sated, "
AB 1844 is a huge win for the business community because it may provide California businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' personal password protected digital content. This legislation may collectively save California businesses tens of millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save California businesses tens of millions of dollars per year on cyber liability insurance premiums that would accompany a duty to monitor employees in the digital/social media space.

The bottom line is that California is leading the way in the enactment social media privacy legislation that protects schools, students, prospective students, employers, employees, and job applicants.

(Full Disclosure: I advised California State Senator Yee's office on SB 1349 and Assembly Member Campos' office AB 1844.)

To learn more about these issues you may contact me at www.shearlaw.com.

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

U.S. Court: Student-Athlete Social Media Monitoring Violates the 1st and 4th Amendment

A U.S. District Court in Minnesota has stated that public schools that require access to their students' password protected digital content are violating their students' 1st and 4th Amendment rights. In R.S. ex rel. S.S. v. Minnewaska Area Dist. No 2149 2012 WL 3870868, a student was allegedly intimidated into turning over her Facebook username and password, and her personal email username and password so the school could view her password protected digital content for references to a hall monitor whom the student felt was treating her unfairly.

On June 22, 2011, I stated that if the NCAA requires its students to turn over their social media credentials, "The NCAA is going down a very slippery slope that has major First Amendment and privacy implications. I believe the NCAA should rethink its social media compliance allegations against UNC."

and

on September 27, 2011, I stated "I believe UNC's new social media policy may violate the 1st, 4th, and 14th Amendments of the U.S. Constitution" because UNC's policy requires their student-athletes to provide the school access to their password protected digital content.

Public schools that require any of their students to register their social media usernames, or to provide access to their password protected digital content via required Facebook Friending or the installation of a third-party software application for any reason are in clear violation of the 1st and 4th Amendment. Therefore, any school that utilizes a social media monitoring company to track their student-athletes online may want to change their policy immediately before their legal liability exponentially increases.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Twitter Hands Over Occupy Wall Street Tweets

According to The Associated Press, Twitter has complied with a judge's order to hand over the Tweets of an Occupy Wall Street protestor. Twitter was ordered by Judge Matthew Sciarrino Jr. to turn over the information by today or face steep fines if it refused to do so.

On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.

On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.

On September 11, 2012, I stated, "while I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users."

There may be future situations where the facts may better support an expectation of privacy for the Tweeter. However, it appears that the Tweets requested by the Manhattan District Attorney were intended for the entire world to view after they were posted. Since the account that posted the requested Tweets did not activate its privacy settings, I believe it is very difficult to successfully argue that there is an expectation of privacy for the Tweets in question.

To learn how social media intersects with the law you may contact me at www.shearlaw.com.

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

NYPD drafts social media investigation rules

According to the New York Daily News, the New York City Police Department has created official rules on how to utilize social media to investigate potential criminal activity. Since the NYPD developed CompStat, it has been recognized as a leader in utilizing new digital technologies for law enforcement.

The New York Daily News states that under the new rules, NYPD "officers involved in probes involving social media may register their aliases with the department and use a department-issued laptop whose Internet-access card can't be traced back to the NYPD."

In general, I believe that the NYPD should take their rules that govern their activities offline and transfer them online. Since police officers go under cover to fight crime in the real world they should be able to do the same in the digital world. However, if a potential suspect refuses to provide access to an under cover officer via turning down a Facebook Friend request or by changing his privacy settings, the NYPD should then be required to follow the proper legal channels to obtain access to the password protected digital content.

There needs to be an appropriate balance between the needs of law enforcement and the right to privacy. As more police departments follow the NYPD's lead, there may be more opportunities to determine how to balance these issues.

To learn more about these issues you may contact me at www.shearlaw.com.

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