University of Maryland Law School's Symposium on Social Media and the Law

On Friday, April 5, 2013, from 9:00 am to 3:30 pm the University of Maryland Francis King Carey School of Law's Journal of Business & Technology Law is sponsoring a symposium titled, "Social Media and the Law: An Exploratory Look into the Legal Effects of Online Interconnectedness." The event is free, open to the general public, and lunch will be provided to those who RSVP.

Speakers will present on a range of topics, including: the constitutionality of student athlete social media policies; the relationship between social media interfaces and copyright law; and how social media laws are developing with respect to employment law, contracts, and privacy matters. Our speakers include private practitioners, a higher education media relations representative, and professors of law and communications. To RSVP please visit the Journal's website: http://www.law.umaryland.edu/academics/journals/jbtl/symposia.html .

Will Google Glass Change Our Children's Expectation of Privacy?

Do children still have an expectation of privacy?  Every day our personal privacy is slowly being eroded because of advances in technology.  New inventions have enabled our society to more efficiently mass produce food; create the infrastructure to warm our homes and offices in the winter and cool them in the summer; and to invent digital devices that allow us to communicate and share information from around the world and outer space almost instantaneously. 

Frictionless sharing of information between digital platforms enables us to easily provide our thoughts and ideas without having to re-post the same content over and over.  A recent change to the U.S. Video Privacy Protection Act directly benefitted some cloud based computing platforms because the revision now allows them to easily enable their users to share their video viewing history to others online.  While frictionless sharing enables users to quickly post content across multiple digital platforms it may also change our expectation of privacy.  

In 1890, a seminal article co-authored by future Supreme Court Justice Louis Brandeis called "The Right to Privacy" was published in the Harvard Law Review.  The law review article stated, "[i]nstantaneous photographs and newspaper enterprises have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the house-tops."  Justice Brandies' thoughts about privacy are generally credited as the first modern scholarship about the right and expectation of privacy in the United States.

While new digital technologies have made it easier for us to communicate with others, many of these new services have made it more difficult to protect our privacy. Once content is converted into digital form, it may go viral and cause major personal embarrassment.  The digital sharing of inappropriate content may permanently destroy one's personal and/or professional reputation.  Student digital  gaffes have been around for years; however, the increased usage of mobile phones with digital cameras, social media, and cloud computing services over the past several years has only increased the potential for more electronic mistakes that may put personal privacy and security at risk.

According to a 2012 Pew Report entitled, "Parents, Teens, and Online Privacy", 81% of parents of teens say they are concerned about how much information advertisers can learn about their child's online behavior.  This Pew Report also found that 69% of parents of teens are concerned about how their child's online behavior may affect their future academic or employment opportunities.  This report was created before all of the recent media attention surrounding Google's Project Glass (aka Google Glasses).   

Project Glass is a virtual reality pair of glasses that contains many of the same features of a smart phone.  For example, Google Glasses have an embedded camera, microphone, and GPS.  While Google Glasses have the potential to become one of the first commercially viable augmented reality devices, there are some significant privacy concerns that may affect children and create legal liability for users.    

If a teacher or a student wears a pair of Google Glasses during class will those in the classroom feel comfortable knowing that every in class interaction may be streamed online?  How will this affect the learning process?  How will students react knowing that everything stated in class may also be converted to text and  stored in Google's cloud and eventually attached to their online profile forever.   How will students feel if their personal conversations and/or in class thoughts  and ideas are monetized by Google and/or advertisers?  How will Google's Voice Search and Search By Image technology be utilized to data mine the information obtained from Project Glass? 

Twelve states generally require all parties consent to their conversations being recorded.  Will Google Glass be required to post a warning label so consumers are fully informed about the potential legal risks of using this product?    

Many schools across the country are implementing digital media use policies that cover social and mobile technologies.  However, Google's Glass Project may require schools to also include augmented reality technologies in their policies. 

The Internet never forgets and content uploaded online is impossible to fully scrub from the web.  Since digital platforms have the ability to broadcast to the entire world audio and video of our children that may permanently damage their reputations should the law provide our children special protections against these situations?  Children under the age of 18 generally have the right to void agreements they enter into so should they also have the right to require that search engines delete personally identifiable information about them that may harm their ability to attend the school of their dreams or obtain gainful employment?    

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

Did Social Media Convict the Steubenville High School Football Players?

Two guilty verdicts were handed down in the rape trial of two Steubenville high school football players.  There were no winners in this case.  A teenage girl lost her innocence, a couple tennage boys are forever branded as sex offenders, and a small town may now be known as that town where a disgusting crime came to light because of the power of social media.

Without social media, it is possible that this case may never have gone to trial.  After the New York Times covered this matter last December, the story picked up steam.  Subsequently, Anonymous allegedly hacked into the digital accounts of some of those who may have been involved or witnessed the activities surrounding the alleged criminal activity.   

YouTube, Instagram, Twitter, and text messaging were utilized by those who either witnessed the incident or who may have been involved with the matter.  The digital content that came to light shocked and sickened the public and may have helped convict the perpetrators of this crime.

According to ABC News, "[t]he contents of 13 cell phones were analyzed, which amounted to 396,270 text messages, 308,586 photos, 940 videos, 3,188 phone calls and 16,422 contacts."  Absent the digital evidence via multipe social media platforms would there have been a guilty verdict?  While witness testimony may be persuasive, photos and videos have the ability to become very powerful evidence that may trump eyewitness testimony.  Even though this isn't the first case where social media may have affected the outcome of a trial, it may be a watershed moment for the usage of social media evidence.   

The bottom line is that those who want to violate the law should think twice because anyone who has a mobile digital electronic device has the ability to capture the criminal act.  Within seconds, people from around the world may become aware of the matter via an online post.  Therefore, social media may have the ability to become a deterrent against crime.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

Texas Bill To Allow Service of Process Via Facebook

Texas recently introduced a bill that would allow for service of process via Facebook.  Texas House Bill 1989 if enacted would make the Lone Star State the first in the United States to allow for service of process via social media as an alternative means of service. 

In 2002, a U.S. court approved service of process via email.  In 2008, an Australian court allowed for service of process via social media.  In February of 2012, I told ABC News that I believe service of process via social media will become a reality in the future. 

As I stated on February 25, 2012, the biggest problem with service via social media is authentication.  Even though a digital account may appear to belong to a litigant in a judicial proceeding, account authentication is required to ensure that the account belongs to the right person.

I believe service of process via social or digital means will eventually become more common.  However, absent the proper safeguards to ensure the right "John Doe" is actually served this method has many challenges.  

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

European Commission Fines Microsoft $732 Million Dollars Over Browser Choice

According to the New York Times, the European Commission has flexed its antitrust muscles and fined Microsoft $732 million dollars for failing to live up to a settlement it had previously signed with regulators. The fine was based upon a 2009 agreement that required Microsoft to provide European Windows users a choice of web browsers.

Microsoft has previously admitted that it may have violated its agreement with regulators and apologized for non-compliance.  Microsoft's fine is not the largest that has been levied against a U.S. based technology company.  In 2009, Intel was fined $1.4 billion dollars for allegedly abusing its dominance in the chip market.

European regulators are currently investigating Google regarding its alleged dominant position in the search engine market.  While the FTC has ended its antitrust investigation of Google in January, European regulators have not. 

The bottom line is that it appears that European regulators have American technology companies in their cross hairs.  Therefore, U.S. based companies that create some of the world's most innovative products for use in the digital space should ensure that they adhere to all regulations and laws in the countries they operate in.    

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

White House Says: Unlocking Cell Phones Should Be Legal

Should it be legal to unlock your cell phone?  It was up until earlier this year.  However, due to a ruling by the Library of Congress that was based on a new interpretation of the DMCA it is now against the law to unlock your legally bought subsidized cell phone. 

Last month, a petition that was started on the White House's web site received more than 100,000 e-signatures to request that that ruling be changed.  Today, the White House responded and stated that unlocking cell phones should be legal.

Once a consumer has fulfilled his contractual obligations to a service provider for a subsidized cell phone why shouldn't he be able to utilize his cell phone on another carrier?  When someone buys a new car and is finished paying off any outstanding loans on it he is able to generally sell or utilize the vehicle in any manner that suits his purpose.  This includes updating the car's engines and internal mechanics. Therefore, why shouldn't cell phone owners have the same rights?

While the White House and the FCC's acknowledgement that this is a matter that may need a legislative resolution is good news; changing the law will take more than a couple of announcements and/or blog posts.   

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

Massachusetts Bill To Ban Data-Mining of Student Emails

Massachusetts has become the first state to introduce legislation that would ban companies that provide cloud computing services from processing student data for commercial purposes. MA Bill 331 is sponsored by Rep. Carlo Basile and it was referred to the House Committee on Education on January 22, 2013.

MA Bill 331 states, "Section 1. Notwithstanding any general or special law to the contrary any person who provides a cloud computing service to an educational institution operating within the State shall process data of a student enrolled in kindergarten through twelfth grade for the sole purpose of providing the cloud computing service to the educational institution and shall not process such data for any commercial purpose, including but not limited to advertising purposes that benefit the cloud computing service provider."

The bill may be interpreted to mean that firms who offer cloud computing services to Massachusetts academic institutions that enroll kindergarten through twelfth graders may not utilize the information contained in student emails for monetary gain. If this legislation is enacted, cloud service providers may not serve ads to students on school provided digital accounts based upon a student's digitally expressed thoughts or ideas.

Internet advertisers monetize the thoughts and/or ideas of its users via behavioral advertising. Digital behavioral advertising may occur when an email service provider scans the content of an email and then serves the user ads based upon the information it processes. For example, if a student emailed his health or sex education teacher to ask about sexually transmitted diseases or teen pregnancy, MA Bill 331 would ban a cloud computing service provider from serving ads for condoms or other related products or services to the student's school owned digital account.

According to a statement from the American Academy of Pediatrics, "young people are cognitively and psychologically defenseless against advertising." Therefore, would it be acceptable if a teacher was paid to review student class work, noted student preferences, and then returned graded assignments with offers for discounted merchandise based upon a student's home work or in class assignments?

Since it would be a breach of the National Education Association's Code of Ethics if a teacher utilizes personal knowledge obtained from his students for private advantage, shouldn't it also be a breach of the Code of Ethics if a cloud computing service provider utilizes an algorithm to do the same digitally? Because it is not acceptable if teachers offered discounts based upon student preferences gleaned from school work it should also not be acceptable if a computer algorithm processed the same information digitally and then served ads based upon the same data.

While MA Bill 331 is a good start, it should be amended to cover post-secondary students because Massachusetts is home to tens of thousands of college students and some of the most prestigious academic institutions in the world. Shouldn't students in college and graduate school also have their student-teacher interactions protected from being utilized for commercial purposes?

In general, Google's Apps For Education standard agreement provides schools the ability to serve ads to its students. The agreements generally state that all advertising revenue generated will be retained by Google so at this point it appears that schools do not have an economic incentive to turn on the behavioral advertising function. However, what will stop Google from approaching schools and stating that in order to continue receiving Google Apps for Education for free the advertising function must be enabled? Should graded school assignments and personal student-teacher interactions be utilized to serve ads to students in order to pay for educational software?

Educational software is expensive and because of the terrible recession that our country has experienced many states have seen steep cuts in education funding. While Massachusetts public schools have not yet experienced the same type of funding cuts that have beleaguered many other states what will happen when Massachusetts decides it must recalibrate how it dedicates its resources and K-12 schools are negatively affected by this change?

Tens of thousands of kindergarten through twelfth grade students in Massachusetts may already be at risk of having their school work data mined for advertising purposes. For example, students who attend Burlington Public Schools and Plymouth Public Schools in Massachusetts utilize Google Apps For Education. If students at these schools use their school provided Gmail based accounts after they graduate or link their personal YouTube or Google Plus account to their school sanctioned Gmail account their student-teacher interactions and class work may be monetized by Google and/or its advertising partners. However, if MA Bill 331 is enacted it may stop third parties from being able to monetize the digital thoughts and ideas of Massachusetts students and better protect their privacy and security.

96 percent of Google's $37.9 billion in 2011 revenue was earned from advertising. Is Google providing schools free access to its Google Apps For Education software in the hopes that it will eventually earn advertising revenue from data mining our children's digital school assignments and education-related interactions? Absent state and/or federal laws that ban the data mining of our children's class work on school provided digital accounts companies that offer educational cloud computing services to our schools may utilize our kid's personal private data for commercial gain.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

Right To Privacy Will Be Protected By The Social Networking Online Protection Act

The Social Networking Online Protection Act (SNOPA) was recently reintroduced by Congressman Eliot Engel of New York. SNOPA is the first bipartisan federal legislation designed to protect the digital privacy of employees, job applicants, students, and student applicants in the Social Media Age. The legislation may also provide a legal liability shield to businesses and academic institutions that may make it difficult for litigants to claim that these entities have a legal duty to monitor the personal digital accounts of their employees and/or students.

The right to digital privacy needs to be statutorily strengthened in the United States. Last year, the Supreme Court in U.S. v. Jones ruled that the government needs a warrant in order to place a GPS device onto a suspect's car. The Jones' decision demonstrates that the judiciary recognizes that people still have an expectation of privacy in the Social Media Age.

At this point, there have been only a handful of publicized examples where employees have alleged that their employer and/or a company with whom they interviewed with requested access to their personal digital accounts. This may be an underreported problem because according to a 2012 Harris Interactive Survey, 37% of hiring managers utilize social networking sites to screen candidates.

Without the protections that SNOPA provides how long will it be before it becomes commonplace for employers to require job applicants and/or employees provide access to personal password protected digital accounts as part of the employment process? In 2008, Congress enacted the Genetic Information Non-Discrimination Act (GINA) to bar employers from using genetic information when making employment decisions. GINA was not enacted because of a high profile incident where an employer required a candidate to submit his genetic information as part of the application process; it was enacted as a pre-emptive measure. In contrast, there are already multiple verifiable situations where employers are requiring job applicants provide their personal digital credentials as part of the application process.

While there have only been a handful of publicized incidents where employers are requiring access to their candidates' personal password protected digital content, thousands of students across the country are being required to turn over their digital usernames and/or passwords and/or Facebook Friend a school administrator and/or install cyberstalking software in order to attend a public school, keep a scholarship or participate in extra-curricular activities.

There have been multiple incidents where public school students have been forced without reasonable suspicion to turn over their personal Facebook and/or email usernames and passwords to school administrators. Universities across the country are requiring student-athletes to register their social media user names and/or Facebook Friend school officials and/or install cyberstalking software to track and archive their personal digital activity.

With access comes responsibility. Last year, a former Library of Congress employee alleged in a lawsuit that because his former supervisor viewed one of the groups he liked on Facebook he was discriminated against. The family of Yardley Love, a University of Virginia (UVA) student-athlete who was murdered on UVA's campus by her former boyfriend George Huguely (also a UVA student-athlete), is suing UVA and school employees for $30 million dollars for failing to properly protect their daughter.

Love's family alleges that UVA and its employees knew or should have known Huguely was a danger to Love because Huguely was not properly disciplined for past known inappropriate conduct because he was a star student-athlete. While it is too soon to speculate what type of evidence Love's family will introduce during legal proceedings, if UVA and/or its employees had access to Huguely's or Love's personal digital accounts and missed and/or intentionally ignored content that may have indicated a potential problem this may create tremendous legal liability for UVA and/or its employees.

If SNOPA is enacted students will not have to worry about being required to provide access to their personal digital accounts in order to attend the school of their dreams or keep their scholarships. In addition, academic institutions that do not violate the law may have a strong legal liability shield against litigants who claim schools have a legal duty to become the social media police.

Protecting personal digital privacy will help grow the economy and foment new technological breakthroughs. If people believe their personal password protected digital thoughts, ideas, and creations are statutorily protected they will increase their usage of Dropbox, Microsoft SkyDrive, Google Plus, Facebook, etc... It is vital for our country's competitive future to implement public policy that encourages increased digital platform participation in our increasingly interconnected world.

SNOPA would  encourage widespread consumer adoption of cloud based platforms because users will not have to worry that their employer or school may require they provide access to their personal password protected digital accounts absent a judicial order. SNOPA is bipartisan win-win legislation that protects employers, employees, job applicants, schools, students, and student-applicants.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

(Full Disclosure: I am working with Congressman Engel's office on this bill.) 

U.S. Social Networking Online Protection Act Reintroduced

The Social Networking Online Protection Act (SNOPA) was reintroduced today by Congressman Elliot Engel of New York. The bill would ban employers and schools from being able to request or require that employees, job applicants, students, or student applicants provide access to personal password protected digital accounts. The bill is a win for businesses, schools, employees, job applicants, student applicants, students, and the right to privacy.

With access comes responsibility.  Without access it would be very difficult for an employer or school to be held legally liable for the digital content that an employee or student posts on their personal digital accounts.  Therefore, the bill may protect businesses, schools, and taxpayers from tremendous legal liability.

This bill is needed because some companies are approaching employers and schools with the pitch:  require your employees and/or students to verify their digital media credentials so we can scan everything they have said online, everything said about them online, and everything their digital connections discuss online.  In general, nobody should be required to verify their personal digital credentials/activities/content absent a legal proceeding that requires it.  More information will be forthcoming.  

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

(Full Disclosure: I am working with Congressman Engel's office on this bill.)

FTC: More Mobile Apps Privacy Disclosures Required

The FTC recently released its “Mobile Privacy Disclosure: Building Trust Through Transparency” staff report. The theme of the report is that mobile platform operating system providers (Amazon, Apple, BlackBerry, Google, and Microsoft), app developers, ad networks, and analytic companies need to provide consumers with timely, easy-to-understand disclosures about the data that is collected about them and how the data is utilized.

It appears to build on the September 2012 report “Marketing Your Mobile App: Get it Right From the Start”. Some of the recommendations in the September 2012 report include: build privacy considerations in from the start, honor your privacy promises, collect sensitive information only with consent, and keep user data secure.

Some members of the app ecosystem appear to have taken the FTC’s September 2012 report very seriously and anticipated that the FTC would soon crack down on companies that may not be following the FTC’s prior digital privacy recommendations. Before the FTC’s new Mobile Privacy Disclosure staff report was released, Apple, Facebook, and Microsoft teamed up to create a new initiative to educate app developers about digital privacy. The program is called ACT 4 Apps and it plans to create an environment where app developers may interact with privacy experts to learn how to abide by state and federal privacy laws.

The announcement that the FTC has fined social networking app Path $800,000 for alleged privacy violations along with this new staff report continues to demonstrates that the FTC is spending considerable resources on digital privacy issues. When the FTC announced last August that Google agreed to pay a $22.5 million dollar fine for misrepresenting to users of Apple’s Safari Internet browser that it would not place tracking “cookies” or serve targeted ads to those users that should have been a wake up call to the digital industry that their business practices may be more heavily scrutinized. December’s announcement that the FTC adopted final amendments to the Children’s Online Privacy Protection Rule (COPPA) to strengthen kids’ privacy protections should have been recognized as a signal by the digital industry that it must become more proactive in protecting the personal data of its users.

This newly released staff report recommends that mobile platforms should:  provide just-in-time disclosures to consumers and obtain their affirmative express consent before allowing apps to access sensitive content like geolocation; consider providing just-in-time disclosures and obtain affirmative express consent for other content that consumers would find sensitive in many contexts; consider developing a one-stop “dashboard” approach to allow consumers to review the types of content accessed by the apps they have downloaded; consider developing icons to depict the transmission of user data; promote app developer best practices; consider providing consumers with clear disclosures about the extent to which platforms review apps prior to making them available for download in the app stores, and conduct compliance checks after the apps have been placed in the app stores; and consider offering a Do Not Track (DNT) mechanism for mobile phone users.

App developers should:  have a privacy policy and make sure it is easily accessible; provide just-in-time disclosures and obtain affirmative express consent before collecting and sharing sensitive information; improve coordination and communication with ad networks and other third parties that provide services for apps so the app developers can better understand the software they are using and, in turn, provide accurate disclosures to consumers; and consider participating in self-regulatory programs, trade associations, and industry organizations.

This staff report states that advertising networks and other third parties should: communicate with app developers so that the developers can provide truthful disclosures to consumers; and work with platforms to ensure effective implementation of DNT for mobile platforms.

The overall theme of this staff report is that the mobile apps industry must do a better job of communicating to its users what data is being collected and how it is being utilized. If mobile apps stakeholders do not move in a timely manner to implement the recommendations in this report more regulation may be required to protect the personal privacy of consumers. The bottom line is that the FTC may closely monitor how stakeholders react to its recommendations to determine if more regulation may be required to protect the digital privacy of users.

While mobile apps offer some great benefits and exciting new ways to interact with others, there are tremendous privacy issues that need to be addressed. Mobile ecosystem gatekeepers and app developers need to work with regulators and lawmakers to protect the personal privacy of mobile app users and to ensure that the industry does not become over-regulated.

To learn more about these issues you may contact me at http://shearlaw.com.

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