U.S. Protecting Student Privacy Act Needs More Teeth

The bipartisan "Protecting Student Privacy Act" was introduced earlier today by Senators Edward J. Markey (D-Mass.) and Orrin Hatch (R-Utah) and according to the bill's press release, it "would help safeguard the educational records of students" because, "[r]ecent changes to the Family Educational Rights and Privacy Act (FERPA) have allowed for increased sharing and use of student data in the private sector."  As part of the rationale behind the need for the legislation it is mentioned that, "one survey found only 25 percent of districts inform parents of their use of cloud services and 20 percent of districts fail to have policies governing the use of online services."

FERPA needs to be updated to account for the technological advancements that have occurred in the Digital Age.  The law was enacted in 1974 when student educational records were mostly created by pen and paper and/or typewriter and stored in a school administration filing cabinet or in a teacher's notebook or classroom closet.  At that time, in general, only teachers and school administrators had access to a student's educational records. 

Since the 1970's, advancements in technology have changed the way teachers interact with students, parents, and legal guardians. When I was attending elementary, middle, and high school throughout the 1980's, the primary form of communication between teachers and students/parents was via in-person meetings, paper letters, and/or phone calls.  In contrast, the primary form of communication between my children's teachers and my wife and I occurs via digital platforms. 

As a parent, I watch my children play and learn with electronic devices on a regular basis.  Even though my children watch television as I did at their age, they are becoming more interested in utilizing educational websites and digital device apps.  Some of these platforms have helped them learn language skills, math, geography, history, etc....With more school districts beginning to provide students digital devices, the privacy and cyber safety issues inherent with the usage of these electronic platforms are becoming more apparent. 

According to Politico, "[m]any of the latest digital tools (i.e. email, apps, cloud services, online textbooks, etc...) collect vast amounts of “metadata” as students work online; the sites track academic progress and log information about the child’s location, computer equipment and browsing habits. Most of that data never finds its way into official school files and thus is unlikely to be considered an “educational record.” That means private companies are free to do what they want with it."  This is very alarming considering that when Kathleen Styles, the Chief Privacy Officer of the Department of Education was questioned about these issues she stated that "[a]lot of metadata won't fit as an educational record."    

Due to all of the personally identifiable student information included in emails, apps, online textbooks, web browsing history and other digital activities (i.e. metadata) students may create while utilizing school provided digital services and learning tools, it is imperative that FERPA is updated to ensure that our children and future generations receive the same privacy protections we enjoyed while we attended school.  Should colleges, potential employers, insurance companies, etc... be allowed to access student scholastic digital communications and make hiring, firing, and policy decisions based on this information?  Should advertisers be allowed to prey upon (via behavioral advertising) students based upon their student-teacher and/or student-student digital communications?

It is very troubling that the Software & Information Industry Association (SIIA) continues to refuse to acknowledge the dire need for stronger digital privacy laws to protect our students despite clear and convincing evidence that FERPA does not properly protect our children's privacy in the Digital Age.  During a June 25, 2014 hearing on Capitol Hill Professor Joel Reidenberg presented Fordham Law School's Center on Law and Information Policy's seminal cloud computing study findings that demonstrated some cloud computing vendors are negotiating agreements with schools that put our students personal privacy at risk.

In addition to Prof. Reidenberg's study, Education Week and Politico performed recent in-depth investigative reports regarding the need for FERPA to be updated to better protect student privacy. These investigations found that when provided the opportunity some educational technology vendors will abuse their access to student data for profit.  For example, Education Week exposed Google's practice of scanning student emails for behavioral advertising purposes and Politico found multiple other educational technology companies that had similar troubling privacy practices and/or policies (or none at all) that enabled similar abuses of personal student data.  

Since Congress has not addressed these issues until now, states across the country have introduced and enacted more robust student data protection laws to address the privacy concerns that FERPA was not designed to protect.  For example, Kentucky and Rhode Island are some of the states that have acted to better protect our children from entities that may abuse their access to student educational digital data.     

While it is a very positive development that states are acting to better protect student privacy, it may be most efficient if robust federal legislation is enacted.  I commend Senators Markey and Hatch for introducing the Protecting Student Privacy Act and making student privacy an important bipartisan issue during these very partisan times on Capitol Hill.

The introduction of the Protecting Student Privacy Act is a good first step; however, it needs to be amended to have the intended effect of updating FERPA to account for the Digital Age.  For example, the bill needs to expand the definition of educational records to include student emails and digital metadata created on school provided services, platforms, and equipment.  Under FERPA, there is no private right of action against companies that utilize student data for non-educational purposes. To be truly effective, the legislation must hold vendors legally accountable and allow for a private right of action against those entities that violate the law. 

To paraphrase Hilary Clinton, it takes a village to protect our students' personal privacy.  Absent more robust federal student privacy laws, parents may soon come out in force against utilizing innovative digital learning tools and services.  It is imperative that Congress pass stronger student privacy laws that have strong enforcement mechanisms so students, parents, and teachers feel safe utilizing new learning tools that will help our students compete in the global economy.    

Copyright 2014 by Shear Law, LLC All rights reserved.

Social Media Evidence May Determine Who Shot Down Malaysian Plane

It appears that a Malaysian passenger jet may have been mistakenly shot down in the skies above territory that is in dispute between Ukraine and Russia.  USA Today is reporting that rebels who may be backed by Russia may have arms capable of downing a passenger jet that is flying 20,000+ feet in the sky.

Photos of the tragedy have appeared online and it leads me to believe that the crash site may become contaminated. In this hyper-sensitive and viral world everything posted online about this tragedy is put under a microscope.  For example, American Pie actor Jason Biggs Tweet “Anyone wanna buy my Malaysian Airlines frequent flier miles?” was deemed so offensive by the Internet community that he ended up issuing an apology after it went viral. 

Entertainers and politicians do not have a monopoly on regretting their online posts.  According to AFP, it appears that some Pro-Russian insurgents may also have itchy social media fingers because some of their online postings boasting about downing an airplane around the same time/place that the Malaysian jet went down have now been deleted.  Since the crash site may become contaminated will social media become crucial evidence in determining who shot down the Malaysian passenger jet? 

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

Porky's Fan? VA Prosecutor Requests Warrant To Photo Sexting Teen's Erect Penis

An article in the Washington Post alleges that Manassas City police and Prince William County prosecutors want to take photos of a teenage suspect's erect penis as evidence to prosecute him for sexting with his girlfriend.  In order to photograph the suspect's erect penis he may be required to go to a hospital and receive an injection to create an erection.

It appears that the case began when the suspect's (he is 17 years old) 15 year old girlfriend sent photos of herself to the 17 year old, who responded by sending the 15 year old girl allegedly pornographic images of himself.  The family of the girl notified authorities about the matter.  Interestingly, prosecutors did not file charges against the girl.   

This case reminds me of the movie Porky's when physical education teacher Ms. Balbricker asks the high school principal if he would sanction a penis (tallywacker) lineup of several students so she can identify which student stuck his penis through a peep hole in the girl's bathroom.  Ms. Balbricker claims she can identify the offending student's penis because it contains a distinctive mole.  In the movie, the request for the penis line up was denied. 

Was the prosecutor's troubling request inspired by Porky's?  As a parent of two young children, I am outraged by the actions of the police and prosecutors in this matter.  What happened to educating our kids about the dangers of sexting?  Why are prosecutors utilizing public resources to try to photograph a teenager's erect penis? 

My hope is that prosecutors and judges across the country realize that this is the wrong way to deal with sexting by teenagers.

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

Social Media Posts Lead To Firing of TV and Radio Personalities

Last month, Travel Channel personality Adam Richman made some very disturbing posts that led to his upcoming new show being postponed indefinitely.  Talk show host Anthony Cumia of Sirius was fired from his radio show last week for a series of allegedly racists Tweets.  Both of these incidents occurred "off the air" during personal time but they had negative employment consequences.

Social Media is not the panacea that some business consultants claim.  Too many self styled "social media consultants" advise their clients to pump out content on multiple platforms 24/7.  On a regular basis, clients ask me about the legal, business, and reputation related issues surrounding disturbing social media posts.  Unfortunately, I am usually contacted after a "social media consultant" has already provided career killing advice or inadequate training.

If one feels the need to respond to Tweets (or other types of posts) or get into a Facebook discussion with others, the amount of information/content posted should be limited since it may be utilized against you forever.  Yes, forever!  Any postings may be submitted as evidence in a court of law or may be used in the court of public opinion to destroy your career so less is usually more.  I have never had a client tell me he or she regretted not Tweeting more or posting a longer Facebook response.

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

EPIC Files FTC Complaint over Facebook's Emotion Study

The Electronic Information Privacy Center (EPIC), a privacy advocacy group that has been performing great work for 20 years filed a complaint with the FTC alleging that Facebook's emotion study "deceived its users and violated the terms of a 2012 FTC consent decree."  The complaint was filed right before the July 4th holiday weekend. 

Facebook's refusal to issue an immediate apology regarding this issue demonstrates once again that the company is tone deaf when it comes to user privacy.  I have documented Facebook's troubling position regarding digital privacy time and time and time, etc...again. 

When I initially stated that Facebook's emotion study may have violated Facebook's FTC consent agreement early in the day on 6/30/14, I didn't see any other published articles mentioning this possibility.  Soon after I posted my article, Forbes reported that Facebook changed its terms to allegedly allow user data to be utilized for "research" purposes 4 months after the study was completed.

There are many users, technologists, and members of the media who are drinking the Silicon Valley Cool-Aid and defending Facebook's (and other companies) troubling practices because privacy policies, along with terms of use, and data use policies are written so broadly in the hopes that the language allows for any type of data usage and/or manipulation.  Just because one agrees to a troubling privacy policy/terms of use/data use policy clause in an agreement, that doesn't mean a court of law will automatically rule that the policy is legal and enforceable.   

The common law blue pencil doctrine is utilized when contract clauses are ruled to be unreasonable and violate public policy.  This doctrine enables courts to strike troubling clauses from executed agreements.  Is it time for the courts to start "blue penciling" unreasonable privacy policies, terms of use, data use policies, etc...? 

If some Silicon Valley companies don't start changing their data collection and usage practices it would not surprise me if the courts start flexing their blue pencil muscles to protect the personal privacy and safety of citizens in the Digital Age. 

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

Facebook's Unethical Experiment May Have Violated FTC Order

Facebook has proven once again that it does not care about its users' privacy and that it may manipulate their users' emotional well-being for corporate profit.   In an explosive article in The Atlantic it is alleged that Facebook intentionally manipulated the news feeds of almost 700,000 users as part of an experiment about emotional contagion on social networks. 

In the past, it appears Facebook related research was focused on analyzing the information users upload.  In contrast, this appears to be the first time Facebook has publicly acknowledged that it was intentionally manipulating its users' news feeds for psychological experimentation.  Is this the first time this has occurred?  If not, is Facebook prepared to come clean about this matter and all similar user experiments? 

According to the New York Times, "[t]he company [Facebook] says users consent to this kind of manipulation when they agree to its terms of service. But in the quick judgment of the Internet, that argument was not universally accepted."  I have reviewed Facebook's Terms of Service and it appears it may be a legal super hero Plastic Man stretch (think South Park Humancentipad episode about terms of service) that users agreed to psychological experimentation by agreeing to Facebook's terms of service.

The National Institutes of Health (NIH) which is located about a mile from my office has a very detailed history about the laws relating to the protection of human subjects who are part of an experiment.  Did Facebook violate the spirit or the letter of any of these laws?

It would not surprise me if Facebook and/or other digital platforms update their terms of service to clearly state they are able to perform this type of troubling psychological testing on users.  While it is too soon to speculate on whether the experiment abided by Facebook's terms of service and traditional subject informed consent rules, this should be a wake up call to regulators to look more closely at the data collection and usage practices of the digital ecosystem.  

Did Facebook inform the FTC about this experiment during its 2012 investigation that culminated in the 2012 FTC Consent Order that alleged Facebook violated its users' privacy.  Does performing psychological experiments on users without expressed informed consent violate this order?

The bottom line is that this should be a wake up call to those who post on Facebook and utilize platforms that use your personal information for behavioral advertising purposes and/or sell it to data brokers.  As I stated on June, 12, 2014, "I don't advise anyone who values their privacy to post personal information to Facebook because it has an abysmal record when it comes to protecting user privacy."  Facebook's latest actions demonstrate that it believes its users are nothing more than lab rats who give up all of their rights when agreeing to Facebook's Terms of Service and Privacy Policy.

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

Supreme Court: 9-0 We Have The Right To Privacy In The Digital Age

In a 9-0 decision earlier this week in Riley v. California and U.S. v. Wurie, the U.S. Supreme Court ruled that the police generally need a warrant to search cell phones and personal electronic devices of those who are arrested.  I agree wholeheartedly with Adam Liptak's assertion that its "a sweeping victory for privacy rights in the digital age."  

This decision appears to have been built upon the U.S. v. Jones decision in 2012 which ruled 9-0 that a warrant is required to place a GPS tracker on a suspect's vehicle. I believe that when reviewed together U.S. v. Jones,  Riley v. California, and U.S. v. Wurie, provides strong evidence that the 1979 Smith v. Maryland decision that use of a pen register by law enforcement is not a search within the meaning of the Fourth Amendment may be jeopardy. 

The bottom line is that the U.S. Supreme Court has clearly recognized that we have an expectation of privacy in the digital age.  Law enforcement appears now to need a warrant to not only search personal cell phones and digital devices, but also personal digital accounts such as email accounts, social media accounts, cloud computing accounts, app accounts, and other connected devices/accounts that may be referred to the "Internet of Things", etc... of the people whom they arrest.

Does this ruling strengthen the Electronic Communications Privacy Act by now requiring law enforcement to obtain a warrant for all emails regardless of their age during an investigation?  While it is still too early to determine all of the ramifications of this decision, it demonstrates that the U.S. Supreme Court believes we still have a right to privacy despite the changing nature and usage of technology.

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

Congressional Hearing: More Enforcement Needed To Protect Student Data Privacy

I recently attended a Joint Hearing with the Subcommittee on Early Childhood, Elementary, and Secondary Education titled, "How Data Mining Threatens Student Privacy"in Congress.  This hearing caught my attention because as a parent of two young children student privacy is very near and dear to my heart.  

Invited to testify were:  Prof. Joel Reidenberg, Founding Academic Director of Fordham Law School's Center on Law and Information Policy, Mr. Mark MacCarthy, Vice President of Public Policy for the Software & Information Industry Association (SIIA), Ms. Joyce Popp, Chief Information Officer of the Idaho State Department of Education, and Mr. Thomas Murray, State and District Digital Learning Director for the Alliance for Excellent Education.
  
During the hearing, Prof. Reidenberg discussed his groundbreaking Privacy and Cloud Computing in Public Schools study that found, "fewer than 7% of contracts [between schools and ed-tech vendors] restrict the sale or marketing of student information by vendors, and many [cloud] computing agreements allow vendors to change the terms without notice."  He also stated that 25% of services offered to schools use "freemium" models that have to monetize student data in a manner that most likely does not benefit student learning.  These troubling findings were of great interest to the members of Congress and those who attended the hearing.

The SIIA appeared not to be interested in acknowledging Prof. Reidenberg's findings and the organization may have even provided intentionally misleading testimony.  For example, on pages 4-5 of its written testimony the SIIA stated, "The federal government recently updated regulations and guidance for FERPA [Family Educational Rights and Privacy Act] and COPPA [Children’s Online Privacy Protection] specific to online educational services."  This statement is factually incorrect. 

FERPA's regulations were not recently updated.  Earlier this year, the Department of Education issued updated guidelines which do not provide the same protections as updated regulations.  During the hearing, Prof. Reidenberg made the committee aware of this distinction.  When the SIIA stated that Prof. Reidenberg's study did not have concrete proof that some ed-tech vendors were utilizing personal student data for non-educational purposes, Prof. Reidenberg mentioned Google's recent admission in federal court that it scans student emails for potential advertising.  

The SIIA's members include ed-tech vendors that sell their services to schools.  Some of these companies offer their digital services for free to schools and in return may data mine student emails and build student user profiles for advertising purposes.  For example, in an ongoing federal lawsuit in California that Prof. Reidenberg mentioned in his testimony, Google admitted under oath, that it “scans and indexes the emails of all Apps for Education users for a variety of purposes, including potential advertising,....that cannot be turned off—even for Apps for Education customers who elect not to receive ads."

While intense outrage from parents and schools along with international media scrutiny recently led to Google announcing it will allegedly stop these practices, Google's behavior demonstrates the need for stronger enforcement of student privacy laws, greater transparency in the industry, and where needed a strengthening of the current legal and regulatory framework. 

One of the most memorable instances of the hearing occurred when Rep. Pat Meehan of Pennsylvania asked the SIIA whether current law would protect his son from receiving targeted Coca-Cola ads based on data provided by his school.  The SIIA claimed it would be illegal due to existing government regulations and that FERPA applies to vendors; however, Prof. Reidenberg strongly disagreed with these assertions and proved that the SIIA was misleading the committee about these issues.

Prof. Reidenberg recommended modernizing FERPA so it applies to all student information and mandates a notice to parents for public disclosure of the educational uses of student data.  He also stated that schools need written contracts with specific prohibitions against the use of student data for non-educational purposes, chief privacy officers,  and a private right of action against vendors who misuse student data because currently parents and families do not have legal remedies to hold ed-tech companies legally accountable.

Its unfortunate that the SIIA appears to be more interested in protecting its members who are either monetizing student data for profit or who may want the ability to do so in the future.  During the hearing, it sounded as though the SIIA would not support a private right of action for students and/or their families to hold ed-tech vendors legally accountable for mishandling their personal information.  This apparent admission is very troubling and appears to demonstrate that the SIIA is out of touch with the needs of students, parents, and schools.  If the ed-tech industry wants to ensure the continued growth of the sector it must be willing to support robust enforcement actions and stronger privacy protections for students.

Presidents Bill Clinton, George W. Bush, and Barack Obama each were able to achieve our country's highest elective office because their personal thoughts and the activities they participated in while they were growing up and "exploring their youth" were not held against them for the rest of their lives. The only way current and future generations of students will have the same opportunities to make their hopes and dreams come true is if they are afforded stronger privacy protections regarding their personal digital information.

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

In The Digital Age It Takes A Village To Protect Student Privacy

Some privacy advocates have breathed a sigh of relief since hearing of the demise of non-profit inBloom, an organization that was created in 2011 to store and aggregate a wide range of student information to be used by classroom educators. The merits of inBloom's mission can be debated until its advocates and detractors are blue or red in the face.  Regardless of whether one is for or against inBloom, or its future progeny, the real win here is that student privacy is now part and parcel of the education technology (ed-tech) conversation.

Protecting the personal privacy of students has gained national attention due to the issues surrounding inBloom combined with several high profile data breaches. Compounding the privacy challenges facing students is that the Family Educational Rights and Privacy Act (FERPA), which aims to protect the privacy of students and their families, has not been updated to account for the issues inherent in the Digital Age. The Electronic Privacy Information Center, along with other privacy advocates, has alleged that the Department of Education actually weakened FERPA in 2011.

In fact, weakening student privacy protections at the dawn of the age of Big Data, the cloud, mobile apps and social media appears to have lead to a situation where some companies offer student digital learning tools for free or a reduced price to schools and in return student information may be data mined for profit.  According to a recent Politico "examination of hundreds of pages of privacy policies, terms of service and district contracts there are gaping holes in the protection of children’s privacy."

Earlier this year, Education Week reviewed the ongoing Gmail wiretapping litigation, a case that began in 2010 seeking damages on behalf of Gmail and Google Apps for Education users and those whose messages were sent to Gmail based services and made some very startling discoveries. The most troubling was that Google "scans and indexes the e-mails of all Apps for Education users for a variety of purposes, including potential advertising, via automated processes that cannot be turned off—even for Apps for Education customers who elect not to receive ads."

Google's admission in federal court and its confirmation to the media about its practices created such a huge media firestorm that within weeks after this information became public, Google announced that it would no longer scan the e-mails of students who utilize Google Apps For Education for advertising purposes.  While this announcement was a step in the right direction, why did it take an international media feeding frenzy for a change to a policy that should have never been implemented in the first place?  

In response to Google's about face regarding its student email scanning policy, Prof. Joel Reidenberg of Fordham stated, "Google can change this policy at any time, and, the scanning disclaimer is associated with advertising purposes only....There may be other commercial uses that they are exploiting student data for,....such as selling information to textbook publishers, or test-preparation services."

New technology sometimes creates situations that were never imagined when FERPA was enacted 40 years ago.  For example, when students utilize new digital learning tools offered through their schools is the metadata (the information associated with a student's use of the digital learning service) that may be created by student usage considered an "education record" and thus protected from being data mined for advertising purposes?   According to Kathleen Styles, the U.S. Department of Education's Chief Privacy Officer, “I don’t think it’s necessarily an easy decision, what is and what is not the ‘educational record,.... “It’s very contextual.  A lot of metadata won’t fit as an educational record.”  This uncertainty demonstrates the need for stronger privacy laws that better protects the personal privacy and digital emissions of students.

Possible Solutions

States have began to take action to enhance digital privacy protections for students.  For example, Kentucky's recently enacted HB 232 bans ed-tech service providers from processing student data for any purpose other than providing, improving, developing or maintaining the integrity of the service.  This type of prohibition is imperative in order for parents and students to feel comfortable using new digital learning tools.  According to Politico, "in the past five months, 14 states have enacted stricter student privacy protections, often with overwhelming bipartisan support, and more are likely on the way."

Sens. Edward Markey (D-MA) and Orrin Hatch (R-UT) recently introduced a discussion draft legislation titled, "Protecting Student Privacy Act." According to the press release, "The draft legislation would ensure that students are better protected when data is shared with and held by third parties."  While new federal legislation is a step in the right direction since uniformity across the country is preferred by most stakeholders, I believe an update to the terms "education records" and "personally identifiable information" to account for the increased capturing of student data in a digital format is needed to ensure that children are better protected from companies that put profits ahead of student privacy.

InBloom's demise and Google's recently exposed student data mining practices have brought greater attention to student privacy and the need for stronger regulations and laws that prohibit ed-tech providers from utilizing student data for commercial purposes which may include behavioral advertising, digital profiling, and other exploitation.  Ed-tech vendors must incorporate Privacy by Design into their platforms and commit to making student privacy a priority and not an afterthought. 

The bottom line is that students, parents, teachers, school administrators, lawmakers, state attorney generals, the FTC, and the ed-tech industry must work together to ensure that student  privacy is protected in the Digital Age.

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

Facebook's Expanded Behavioral Advertising Further Erodes User Privacy

According to the Wall Street Journal, "Facebook will soon begin using data it collects about users’ activities around the Web to better target ads on its service.....[f]or years Facebook has dropped small pieces of code on websites and in mobile apps, through which it records users’ browsing habits and online interests. Now it’s going to start using that information to help it deliver personalized ads on Facebook."

The term "personalized ads" means behavioral advertising.  In layman's term, Facebook acts like a private NSA; however, instead of using the digital information it collects about you to protect against terrorist attacks, Facebook uses the data you post and gleaned from your digital activity (posts, messages, and now websites visited, etc...) to make money.  The information Facebook collects about you may also assist foreign hostile governments who legally or illegally acquire access to Facebook's systems.   

About a year ago, Advertising Age reported that Facebook inked agreements with multiple data brokers to mine the personal digital information of users.  These agreements convinced me that posting personal information on Facebook may contribute to consumer discrimination.  The World Privacy Forum and The White House published recent reports that discussed how some populations may be vulnerable to discriminatory practices based upon large amounts of personal information being bought and sold by data brokers and data sources such as Facebook. 

I don't advise anyone who values their privacy to post personal information to Facebook because it has an abysmal record when it comes to protecting user privacy.  For example, in 2012 Facebook settled charges with the FTC that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public.

The bottom line is that if you value your privacy be careful what and where you post online. 

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

Lawsuit: University of Cincinnatti Medical Center Employee Posted Patient STD Diagnosis on Facebook

While social media may be utilized to connect people all over the world to raise money for charity or to persuade citizens to overthrow dictatorships, it may also be used to spread the most personal information for all to see.  Recently, a 20-year old Ohio woman had her sexually transmitted disease diagnosis posted on Facebook by a hospital employee. 

The Cincinnati Enquirer reported that an image of the victim's medical record showing her name and syphilis diagnosis was posted on Facebook to a group called "Team No Hoes" in 2013.  This posting appears to be a federal HIPAA violation and it may also violate multiple Ohio state laws. 

What is the value of the damage to one's reputation if their sexually transmitted disease diagnosis is posted online?  The victim is a 20-year old female who may be unable to obtain employment or gain acceptance into college or graduate school because of this disgusting breach of her personal privacy.  She may also be fired from her employment and/or discriminated against in other unsubtle and undetectable ways.  In addition, the victim may have trouble getting a date and/or finding a mate due to this information being disseminated. 

I am surprised that the hospital did not settle this matter out of court before it was filed.  The reputational damage to the University of Cincinnati Medical Center may be steep.  Will patients go to other service providers due to this incident?  Will the hospital reach a settlement with the victim before it goes to trial?  Does the hospital want a jury to even hear this case?  

While I believe the new European "right to be forgotten" may be abused by child molesters, rapists, murders, politicians, etc...who may want to hide their criminal past, and it may be difficult to implement this new right, should victims of this type breach of their personal medical privacy be afforded the right to be forgotten in the United States? 

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

comScore Agrees To $14 Million Settlement For Privacy Violations

According to its website, comScore is,"a leading Internet technology company that measures what people do as they navigate the digital world-and turns that information into insights and actions for our clients to maximize the value of their digital investments."  Interestingly, according to a lawsuit comScore has recently settled it may have also put profits ahead of its users' personal privacy. 

MediaPost has reported that comScore has agreed to settle a lawsuit that it violated its users' privacy for $14 million dollars.  In 2011, several plaintiffs filed a class-action privacy lawsuit alleging they unknowingly installed comScore's software after downloading a free product and that the company was then able to collect data that included usernames, passwords, search queries, credit card numbers, retail transactions, etc...

Companies that put profits ahead of privacy not only risk the safety and security of their users, they may also be slapped with lawsuits and/or regulatory investigations that may lead to multi-million dollar settlements, fines, legal fees, and other expenses.  The bottom line is that some members of the digital ecosystem must learn that it pays to protect their users' privacy.

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

Court Rules Mom May Be Banned From Posting About Family on Facebook

An appeals court recently ruled that a mother may be banned from posting about her children and ex-husband on Facebook.  According to Mycentraljersey.com, "[t]he restriction on what she [the mother] could say on Facebook was imposed after her ex-husband's family and the Hunterdon County Prosecutor's Office argued that the mother's maniacal postings were frightening, saying that they referenced Book of Revelation in the Bible, serial killer Jeffrey Dahmer, Satan and Adolf Hitler."

In the initial ruling the judge stated, "You can talk about what you want to talk about, but don't reference (your husband) or the children,"  The woman claimed that the restriction was a prior restraint. 

On the surface, this sounds like a clear cut First Amendment violation; however, it appears that
the court imposed the special condition with the purpose of advancing the mother's rehabilitation.  The woman was diagnosed with bipolar disorder and was arrested in May 2011 after trying to take her children to Canada in violation of a custody order.  She pled guilty to interference with custody and in return it appears that the prosecution dropped kidnapping charges.

The bottom line is that infringing on one's First Amendment rights is a slippery slope.  Taking away someone's right to freely express themselves is not something that should be done without weighing other options.  It would not surprise me if these types of cases become more commonplace in the future.

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

Facebook's Troubling Move App Privacy Policy Change

Does Facebook really care about protecting its users' privacy?  Facebook's history appears to demonstrate that the answer is no.  For example, in 2012 Facebook entered into a settlement with the FTC resolving charges that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public. 

In 2012, Facebook changed Instagram's (Facebook had recently purchased it) privacy policy to enable it to better monetize its users' personal information.   At that time, I stated that the changes were very troubling.  Soon after making the privacy policy change announcement, Instagram (i.e. Facebook) backtracked on some of the revisions due to public backlash.  In 2013, Facebook agreed to a $20 million dollar settlement in a lawsuit that alleged it utilized its users' names and likeness in paid advertisements without permission. 

On April 24, 2014, Facebook purchased fitness tracking app Move.  The Wall Street Journal  reported that Move just "changed its privacy policy to allow broader sharing of user data, including with Facebook."  Interestingly, Facebook's "move" to erode Move users' privacy took less than 2 weeks. Move users may have their fitness information combined with their likes, friend lists, photos, personal messages, etc...and this information may be sold to data brokers such as Axciom, Epsilon, Datalogix and Blue Kai.  In turn, data brokers may sell your combined "likes" and fitness routine information to insurance companies, banks, etc... Unfortunately, Move/Facebook users may be discriminated against based upon their daily exercises or lack thereof. 

Since companies such as Facebook appear to put privacy ahead of profits our lawmakers need to act to protect Internet/App users from Digital Usage Discrimination before it is too late. 

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

#SocialMediaFail: PayPal director Rakesh Agrawal Departs After Troubling Tweets

Social Media may be utilized to fund raise for philanthropic causes, to crowd source to help catch criminals, and to help unite family members.  Unfortunately, too many people have lost their jobs because of the content they have posted online.   

The latest person who appears to have joined the #SocialMediaFail club is now former PayPal Director Rakesh Agrawal.  According to The Daily Mail, Mr. Agrawal went on a late night Twitter tirade while in New Orleans.  Mr. Agrawal appears to have made some derogatory comments about his co-workers online that became newsworthy very quickly.  While there appears to be some dispute as to the timing of Mr. Agrawal's departure from PayPal; there is no denying that soon after his Tweets appeared he stopped being employed by PayPal. 

New Orleans is one of the most interesting and exciting cities in the world.  I have had the pleasure of visiting the city on many occasions and experiencing some of the fun festivals and events that the city hosts.  However, not everything one does in New Orleans is meant for the entire world to see.  Unfortunately, what goes on in "Vegas (or in New Orleans or anywhere else) stays in Vegas" may no long apply in the Digital Age.

The bottom line is that everyone, including self described "tech/social media experts", "social media consultants", and the "digerati" need to better understand the ramifications of publicly posting personal thoughts and/or images online.  My hope is that those who read about this incident will realize that just because you may have a Twitter account it does not mean you should actively Tweet.

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