Titan has installed hundreds of advertising beacons around NYC

Buzzfeed is reporting that the New York City government has allowed outdoor media company Titan to install hundreds of advertising beacons (small radio transmitters that may be used to track  people's movements) in pay phones around the city.  Beacons may be utilized to track your movements via cell phone for not just behavioral advertising, but also for nefarious spying purposes that may put cell phone users in harms way.  Interestingly, there has been no public notice about this program so all the facts are hard to come by.  

When this type of technology is deployed in a public space without the community's input it is very troubling.  After hearing about this new program, the New York American Civil Liberties Union Executive Director Donna Lieberman denounced it.  As a former New Yorker and regular visitor, I am very concerned about this development.

Should Titan (or any other company) have been allowed to install these beacons on public property in the first place?  Should Titan be required to publicly list (i.e. transparency) where each of its beacons are located?  Should Titan be required to place large signs next to their beacon locations so those who walk nearby are notified of this program?  Will consumers who have been tracked by Titan without their knowledge or consent soon sue Titan or New York City for breaching their personal privacy?  These are legitimate questions and concerns that require a national conversation. 

For those who are care about their personal privacy and security, now is the time to stand up and be counted before it is too late.

UPDATE:

According to Buzzfeed, New York City has asked Titan to remove its beacons from city owned property and this may occur in the next several days.  This 180 demonstrates the power of social media because within hours of this matter being reported on by Buzzfeed the beacons in question are planning to be removed.

Will Titan be required to answer the following questions:  What type of data did its beacons collect on public property?  From how many people did Titan's beacons collect information from? How much data did it collect?  Will Titan delete all the data it has collected on public property? What were the start dates and what will be the exact end date of this program?  For New York City, who authorized this program without public input?  Will the public be asked the next time this or a similar issue occurs?
    
Copyright 2014 by Shear Law, LLC All rights reserved.   

PA Attorney General's Office Rocked By Porn Email Scandal

In a very troubling development, prosecutors in the Pennsylvania attorney general's office and employees in other state agencies have been accused of sending porn and other inappropriate content via government email systems.  According to the Pittsburgh Post-Gazette, the Secretary of the Department of Environmental Protection and the department's deputy chief counsel have resigned over the scandal.

NBC News has reported that one political appointee who sits on the state Board of Probation and Parole has refused to step down at this point.  The emails involved in the scandal reportedly contained, "still photos of women in pin-up-style poses; mock workplace motivational posters that showed women performing sex acts with male characters who appeared to be their bosses; and video files, bearing winking titles like "NASCAR Victory," or "Delta Faucet commercial" that showed women and men engaged in intercourse and other sexually suggestive acts."

I have talked to some friends of mine who work(ed) in the attorney general's office of other states and none of them send porn via email to their coworkers on work or personal email.  Each person I spoke with also stated that if they were involved in this type of behavior they most likely would be fired or forced to resign.  Last year, a federal judge in Montana was forced into retirement over allegedly racist emails that he sent.  

It is important to be very careful about what one sends via email or other digital platforms.  In general, I do not recommend utilizing work email for personal purposes. 

Copyright 2014 by Shear Law, LLC All rights reserved.       

Student Yik Yak Threat at Towson University Leads To Arrest

Be careful what you post online.  I discuss this theme constantly with my clients, during seminars, and with the media.  Earlier this week, a Towson University student was arrested after posting a threat on the app called Yik Yak. 

An 18-year old Towson University student allegedly made an anonymous threat against Towson University utilizing Yik Yak.  The alleged threat made a reference to creating a "Virginia Tech Part 2".  This troubling alleged reference to the terrible tragedy that occurred at Virginia Tech in 2007 that killed 33 people demonstrates that the student may need the assistance of a mental health professional.   

According to the Towson Towerlight, "[a] resident student first reported the threat to her resident assistant Wednesday afternoon. The RA took it to the Department of Housing and Residence Life, according to the Director of University Communications Ray Feldmann, who then took it to University Police. TUPD then alerted Baltimore County Police, Maryland State Police and the FBI."

The student who allegedly threatened Towson was charged with, "threat of massive violence and disturbing operations at a school." According to the Baltimore Sun, the defendant, "told police he had learned he wasn't performing well in the jazz class and was worried his parents would pull him out of school if his GPA dropped too much..."

The bottom line is that no matter how angry one is it is generally not recommended to express your anger on social media or any other digital platform.  If someone is thinking about harming others or themselves, they should meet with a mental health professional who may be able to assist them.

Copyright 2014 by Shear Law, LLC All rights reserved.     

Can Facebook Be Trusted With Personal Medical Information?

According to Reuters, Facebook wants to get into the healthcare business via your personal health care status.  The report states, "[t]he company [Facebook] is exploring creating online "support communities" that would connect Facebook users suffering from various ailments.  A small team is also considering new "preventative care" applications that would help people improve their lifestyles." 

Is Facebook a safe environment to share personal health information?  This is a question that Facebook users need to answer themselves.  Would I ever trust Facebook with my personal health information?  I don't utilize Facebook to communicate with my family or friends or for any reason other than to explore the constantly changing features on the platform.  For the past several years, I have only utilized Facebook for professional purposes since I don't trust the platform with my personal information.

If you watch Cullen Hoback's documentary Terms and Conditions May Apply you may better understand how Facebook utilizes your personal information.  If watching a documentary is not up your alley, I encourage you to read the clause on 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 (IP License)."  In layman's terms by posting content on Facebook you agree to Facebook utilizing your content in any way it sees fit.

Last year, Forbes reported that Facebook entered into agreements with multiple data brokers to ensure that the personal information you post (i.e. your friends lists, status updates, likes, etc..) is provided to companies/shadowy entities that are creating detailed online and offline personal dossiers about people. Besides advertisers, the information posted on Facebook may be utilized by insurance companies to deny claims and/or employers to discriminate against employees, and colleges to turn down applicants.

If after reading the above you still want to share your personal medical information with Facebook that is your right.  When it comes to privacy, you don't know how valuable it is until you lose it.

Copyright 2014 by Shear Law, LLC All rights reserved.

Google May Have A Strong Defense Against Hacked Celeb Photo Lawsuit Threat

Page 6 of the New York Post was the first media outlet to report that some of the celebrities whose photos were recently hacked may sue Google for not "expeditiously" removing links/images to/of their copyrighted nude photos.  The lawyer, Marty Singer wrote a scathing letter to Google demanding it act "expeditiously" to remove the infringing content or face a lawsuit that may create $100+ million dollars in damages.

According to The New York Times, Marty Singer is "Guard Dog To The Stars (Legally Speaking)".  In a profile from several years ago, Mr. Singer is quoted as saying, “We’re one of the few firms that sue; we don’t just send a letter.”  While I admire Mr. Singer's work in protecting some of the most famous celebrities in the world, I wish him the best of luck and a very sympathetic court room if he follows through and sues Google for not responding "expeditiously" to his take down requests that are governed under the Digital Millennium Copyright Act.

In 2010, I wrote about the challenges copyright holders have under the Digital Millennium Copyright Act regarding protecting their content in a digital world.  At that time I stated,
"According to the Senate Report about the DMCA (S. Rep. 105-190 at 44), "[b]ecause the factual circumstances and technical parameters may vary from case to case, it is not possible to identify a uniform time limit for expeditious action." In my opinion, this indicates that a non-profit may be held to a different less onerous standard than a commercial entity. Since S. Rep 105-190 was created, technology has drastically changed and I do not believe it was the intent of the Senate to provide ISPs/OSPs wide latitude to remove infringing content at their leisure when even a minor delay in removal may cause serious financial repercussions to rights holders."

I further opined, "The DMCA's safe harbor provision is already tilted heavily in favor of ISPs/OSPs. Therefore, to level the playing field it is time for either Congress or the courts to declare that under the DMCA commercial entities have one business day to remove infringing content."   Whether one business day is still an "expeditious" enough standard is debatable; however, at that time I thought it was a good starting point to begin the discussion. 

Since 2010, neither Congress nor the courts have created a universal definition of the term "expeditiously".  Google has one of the most technologically advanced data mining machines in the world so it most likely can do a better job of removing copyrighted nude photos and/or links to them from appearing on its platforms.

Unfortunately, removing content from the Internet is a lot like "whack a mole".  When it has been removed from one website there is a chance it may appear on another platform.  Due to the recent Right To Be Forgotten Ruling in Europe, Mr. Singer may have better luck if any of his clients are European Union citizens; however, this right appears to only apply to Google's European products/services and it is unclear exactly how this new right will be implemented.

From a legal perspective, does Google have a strong legal defense under the DMCA's safe harbor?  In the 2013 Capital Records v. Vimeo case, a New York federal district court ruled that it was "expeditious" to take three and a half weeks to remove 170 infringing videos.  While this ruling only applies to the Southern District of New York, it may provide persuasive opinion for other jurisdictions.

Here, it appears a couple hundred copyrighted photos may have been part of the take down requests and the time frame appears to be a couple of weeks.  Since there is not a definitive legal standard regarding how "expeditiously" a digital platform must act to remove infringing content it appears Google may qualify for "Safe Harbor" protection.  If Google is eventually sued for allegedly violating the DMCA regarding this matter, it should be able to mount a vigorous and most likely successful defense.

Copyright 2014 by Shear Law, LLC All rights reserved.

New California Law Bans Google From Data Mining and Profiling Students For Profit

California has enacted the Student Online Personal Information Protection Act (SOPIPA or SB 1177) that better protects the personal privacy of students.  According to the bill's Legislative Counsel's Digest, "[t]his bill would prohibit an operator of an Internet Web site, online service, online application, or mobile application from knowingly engaging in targeted advertising to students or their parents or legal guardians, using covered information to amass a profile about a K–12 student, selling a student’s information, or disclosing covered information..."

One of new law's staunchest supporters is Common Sense Media's CEO and founder James Steyer.  On October 14, 2013 Common Sense Media sent an open letter and publicly sounded the alarm regarding the need to better safeguard the personal privacy of our children's school created digital data.  According to The New York Times, the organization sent a letter to 16 educational technology vendors to start a conversation on how to better protect student privacy.  The New York Times reported that Google declined to comment on Common Sense Media's public call for stronger privacy safeguards for students.

Google's refusal to comment on Common Sense Media's open letter to the educational technology industry followed an earlier sidestep to the Rhode Island School of Design's questions about its privacy protections for students who utilize Google's Apps For Education service by allegedly equating "not serving ads" to "no student data mining".  While Google may not be serving behavioral based ads to students through its school offerings at this point, this does not mean it is not data mining personal student information for other non-educational purposes.

Common Sense Media's concerns about  a lack of strong privacy protections for students were validated with the release of Fordham University Law School's Privacy and Cloud Computing Study.   According to the Huffington Post, the Fordham Study "found that only one-fourth of [school] districts tell parents about these services [new cloud based technologies] and one-fifth of districts don't have policies explicitly governing their use [of the data collected]. Many contracts between districts and technology vendors don't have privacy policies, and less than 7 percent of the contracts restrict vendors from selling student information. The agreements rarely address security, according to the Fordham research."  These findings were very disturbing and further confirmed the importance of Common Sense Media's call to strengthen student privacy laws.

Education Week's March 2014  investigative report regarding the federal Google Gmail wiretap lawsuit uncovered that Google "scans and indexes" student emails for advertising purposes.  At that time, Google refused to answer whether it was building user profiles of students based upon its access to their school work.  This troubling admission and refusal to be fully transparent about its student data collection and usage practices set off such a huge firestorm that on April 30, 2014,  Google announced it would allegedly discontinue the practice of scanning student emails for advertising purposes.  

In response to Google's alleged policy change, privacy law scholar Prof. Joel Reidenberg of Fordham told Education Week, Google's measure is "a positive step,"....... [however] "he identified two "significant problems" with it: 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."  Prof. Reidenberg's statements were prescient because subsequently Politico investigated the educational technology industry and validated his concerns that student data may be utilized by vendors for "other commercial uses".

More than 93% of Google's 2013 $55 billion dollars in revenue was derived from advertising.  While this is slightly lower than 2009's 97% figure, it demonstrates that Google's primary business for years has been data acquisition and mining to create user profiles for advertising purposes.  Google's advertising business has propelled it to become the 2nd most valuable company in the world.  While becoming the most valuable advertising/data mining company in the history of the world, Google has on multiple occasions intentionally cut corners and violated the personal privacy and safety of its users.  During the past several years, privacy regulators around the world have fined Google tens of millions of dollars for its illegal practices.    

The 2011 FTC-Google Buzz Agreement banned Google from making future privacy misrepresentations.  Unfortunately for users, Google wasted no time in breaching this agreement because in 2012 it paid a $22.5 million dollar record fine for misleading users about its privacy practices regarding the scandal known as the Apple "Safari Hack".  In 2013, Google entered into a multi-million dollar privacy violation settlement with 38 states regarding its Street View Project's data collection practices.  In Septemberof 2014, Germany's Hamburg data protection (privacy) regulator ruled that "Google is ordered to take the necessary technical and organizational measures to guarantee that their users can decide on their own if and to what extend their data is used for profiling."

When Education Week contacted Google regarding its position on SB 1177, "Google...declined to clarify whether it scans student email messages sent using its wildly popular Apps for Education tool suite in order to build profiles that might be used for commercial purposes other than targeted advertising...."  Google's refusal to emphatically deny it scans student emails to create user profiles for non-educational purposes may indicate that it is violating the 2011 FTC-Google Buzz Agreement, and/or its 2013 multi-state Attorney Generals Street View Project Agreement. 

While the EU generally appears to be moving in the right direction regarding enforcing its data protection laws against Google, the company so far has not been held accountable in the United States for violating the personal privacy of millions of students who utilize its school provided services.  When will Google be required by a regulatory authority or a court of law to answer the following questions relating to its student data collection and usage practices?: 

1.   How long has Google been scanning the emails of students for advertising/potential advertising purposes (List dates) and which school and how many students by school were affected by this practice?
2.  Has Google deleted the information it collected under the policy of scanning student emails for advertising/potential advertising purposes?  If so, when?

3.  Why was Google scanning student emails for advertising/potential advertising purposes?

4.  Does Google scan student emails or other student content for any purpose other than virus checking/spam filtering?  If yes, for what other purposes?

5.  Does Google create user profiles and/or combine multiple data points on students for any purpose other than to deliver school contracted services?  If yes, what data points is Google collecting, why is it collecting these data points, and when will Google delete these data points? 

Google's troubling behavior and policy reversal appears to have been the spark that ensured SB 1177 was passed by the state legislature and signed into law.  In addition, Google's unfair and deceptive trade practices demonstrate the need for greater accountability and enforcement to ensure that our children's personal privacy and safety are not compromised for corporate profit.  While the enactment of SB 1177 is a positive development, it is time for students, parents, school administrators, lawmakers, privacy advocates, and regulators to start holding Google accountable for its illegal student data mining and usage.

Copyright 2014 by Shear Law, LLC All rights reserved.

Did Facebook's Real Name Policy Lead to the Killing of An Iraqi Mother By Militants?

The Associated Press has reported that militants belonging to the Islamic State group have murdered a human rights lawyer in Mosul, Iraq.  According to the AP, "gunmen with the group's newly declared police force seized Samira Salih al-Nuaimi last week in a northeastern district of the Mosul while she was home with her husband and three children". 

It has been reported that the United Nations Assistance Mission in Iraq believes her arrest was connected to Facebook messages she posted that were critical of the militants' destruction of religious sites in Mosul. This troubling execution demonstrates how dire the situation is in the Middle East.

Are militants social media monitoring the areas that are under their control?  Are they buying social media monitoring services and deploying them to silence any dissent?  If so, which programs are being utilized?  Did Facebook's real name policy requirement make it easy for the militants to find and execute this lawyer and others who voice dissenting opinions on Facebook? 

Facebook's real name requirement enables it to better track users for advertising and monetization purposes.  The reason behind the policy is money.  Facebook has deals in place with data brokers to enable them to combine people's online persona/activities with their offline activity.  These agreements directly lead to the erosion of personal privacy.  This policy may also discriminate against drag queens and other artists.

Now that it appears that militants are using Facebook's Real Name policy to silence and kill its critics will Facebook change this policy to better protect users?

Copyright 2014 by Shear Law, LLC All rights reserved.

Dr. Selfie, Joan Rivers, Social Media Privacy, and HIPAA Violations

CNN is reporting that while the late comedian Joan Rivers was under anesthesia during the procedure that led to her death one of the doctors took a selfie with her without her consent.  If this allegation is true this is a blatant violation of the Health Insurance Portability and Accountability Act.

This is not the first time a doctor has been accused of inappropriate digital behavior.  Earlier this year, a Seattle doctor was accused of sexting during surgery.  Last year, a doctor was accused of posting photos of a drunk emergency room patient online.  There is no excuse for this type of behavior.   Inappropriate digital interactions is not just a problem in the medical profession.  An Arkansas judge recently was disbarred for leaking confidential information online about an adoption involving actress Charlize Theron.

Was Ms. Rivers' doctor so focused on getting the perfect selfie that the appropriate standard of care not followed?  If it is proven that a doctor took an unauthorized selfie of Joan Rivers during a medical procedure the doctor should lose his medical license.  Regardless of the medical examiners findings on the cause of death, the act of taking a selfie with a patient without consent who is being operated on may in and of itself create significant legal liability.  There is no room in the medical profession for this troubling behavior.

Copyright 2014 by Shear Law, LLC All rights reserved.

California Enacts Yelp Bill To Protect Consumers Freedom of Speech

Earlier this week, California enacted a law that protects consumers from businesses that want to ban them from providing truthful negative online reviews.  Yelp supported AB 2365 and stated, "AB 2365 makes it explicitly clear that non-disparagement clauses in consumer contracts for goods or services in the state of California are void and unenforceable. What this means is that individuals writing online reviews in California are now further protected from those bad actors who hide jargon in consumer contracts in attempts to prohibit you from posting reviews -- positive or negative -- online."

I wrote about this legislation on April 23, 2014 and then again on August 30, 2014 because it is an important digital freedom of speech issue.  According to the Digital Media Law Project, 28 states have Anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes.  States that have enacted Anti-SLAPP laws and/or recognized Anti-SLAPP protections via case law may provide some protections for their citizens. 

While I believe Anti-SLAPP laws may help to ensure that citizens aren't silenced for publicizing unpopular opinions, they may not always protect consumers from sneaky terms of service that companies such as Kleargear.com may slip into their agreements with customers.  Therefore, it wouldn't surprise me if more states enact similar "Yelp" inspired laws.

Copyright 2014 by Shear Law, LLC All rights reserved.

California Passes Non-Disparagement Consumer Contract Clause Ban

California's AB 2365 which prohibits businesses and service professionals from contractually silencing customers who may want to complain about their experiences has been passed by California's legislature and is awaiting the approval of Gov. Brown.  In layman's terms, the legislation generally prohibits a business from inserting into its adhesion contracts and terms of service language that requires a consumer to waive their right to publicly comment about their customer experience on websites such as Yelp, Ripoff Report, etc...

At first glance, this bill may sound like the government passing legislation that is looking for a problem.  Unfortunately, this legislation is needed because some dishonest retailers, service professionals, etc.... are including in their agreements clauses that ban their customers/clients from truthfully telling the world about their negative experiences.  

Earlier this year,  I discussed the Kleargear.com case.  In short, the retailer failed to deliver on its promise and the customer complained online about it on Ripoff Report.  Sometime after the customer complaint was posted, Kleargear.com inserted these clauses into their terms of service:

"In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees. 

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid."

Kleargear.com sent the customer a bill for $3,500 for allegedly violating the above terms.  After the customer refused to pay, Kleargear.com reported the matter to credit rating agencies, claimed the terms were in effect at the time of the customer interaction and this negatively affected the customer's credit report.  In response, the customer sued Kleargear.com and was awarded more than $300,000 in compensatory and punitive damages. 

For those who may not believe this is a growing trend, another recent example demonstrates the need for this legislation.  The New York Post earlier this month exposed a hotel that inserted into its agreements the ability to fine its guests $500 for negative online reviews.  I am also aware of multiple non-publicized similar matters where people have publicly complained about a service provider and when the business became aware of the complaint they threatened the reviewer with a lawsuit. 

In America, we have fought multiple wars for the right to complain freely about bad politicians, governments, etc... so I believe we should have the right to also complain freely about bad private sector service.  While I wish this bill wasn't needed, the insertion of non-disparagement clauses into legally binding agreements appears to be a growing trend.  From a public policy perspective, since we live in a free and democratic society it makes sense to protect consumers from repugnant restrictions on publicizing personal opinions.    

Copyright 2014 by Shear Law, LLC All rights reserved.

California Bill To Regulate Student Social Media Monitoring Services

California's legislation that would regulate social media monitoring of secondary students is one step away from becoming law.  AB-1442 is now on the governor's desk and awaiting his signature or veto.  The bill appears to compliment SB 1349 that protects the social media privacy of students.  While I believe this bill is a good first step, it should be expanded to include post-secondary students.

AB-1442 is greatly needed because companies are approaching secondary and post-secondary schools to social media monitor students.  In secondary schools, these companies generally claim their services help prevent bullying and youth suicide.  In post-secondary schools, these companies generally claim their services help protect the brand of the school and "educate" students. 

Several years ago, social media consultants/their companies focused on monitoring student-athletes in colleges.  They approached school athletic departments and told them to require student-athletes to provide access to their personal social media accounts via disclosing/authenticating user names/passwords and/or installing cyber monitoring software via apps and/or other means.  For approximately $10,000 per year, these services claimed they would help protect a school's athletic brand by monitoring their student-athletes social media activity.  

Since this issue first gained national attention, dozens of states and Congress have introduced and/or enacted legislation that protects students, schools, and taxpayers from these troubling social media consultants and their services.  Our children need to be protected from some of these companies because the founders of these services may lie about the legality of their services and/or intentionally misrepresent their background/experience.  Some of these companies have also been caught re-purposing personal student social media posts for advertising purposes. 

For years, I have warned about the dangers of wide spread social media monitoring of students.  These services may lead to tens of millions of dollars in legal liability for schools along with undemocratic censorship (either self-imposed or government created) by stifling our students' free thought process.  When I read George Orwell's 1984 in high school, I never imagined that U.S. schools would consider implementing these troubling monitoring services.

Absent stronger laws to regulate social media monitoring of students, I am afraid we may become Airstrip One (the location of 1984) and our children will not experience the same privacy protections that previous generations enjoyed.

Shouldn't our children be able to learn from their digital mistakes without fear that they will follow them for the rest of their lives?  Instead of spending money to social media monitor our students why not instead use the same resources to educate them?  Have some school districts forgotten about the phrase, "give a man a fish and you feed him for a day; teach a man how to fish and you feed him for a lifetime?  

Carpe Diem. O Captain My Captain fight for liberty, privacy, and freedom. 

Copyright 2014 by Shear Law, LLC All rights reserved.

Google's Plan To Offer Accounts to Kids Under 13 May Harm Their Privacy

Recently, multiple media outlets reported that Google plans to offer accounts for their wide array of services to children under 13 years of age.  While the details regarding this alleged plan have not been publicized, it has already created a lot of concern with multiple privacy advocates.  In response to these reports, the Center For Digital Democracy stated, " [a]nyone who knows how Google really conducts its business should be alarmed about its plans to make money off of kids."

There are many unanswered questions about this proposal.  For example, how does Google plan on implementing this new offering?  How will these accounts become compliant with the Children's Online Privacy Protection Act (COPPA)?  Will accounts for children under the age of 13 (the age range that COPPA covers) be governed by a new Privacy Policy that actually protects the personal privacy of children rather than the standard Google consumer privacy policy that is in reality a data use policy? 

Will the default privacy option for children be no data collection of personally identifiable information (i.e. opt in required instead of opt-out)?  If a child who is under 13 years old keeps his Google account past the age of 13 will the default be for Google to automatically delete the data it has collected (i.e. opt in required to keep the pre-13 data instead of opt-out)? 

Will informed consent be via a small check box like the one parodied in this South Park HUMANCENiPAD episode that fictitiously enabled Apple to do whatever it wanted to its users; or, will parents be provided clear and concise warnings about how their children's personal information may be utilized?  The documentary Terms and Conditions May Apply thoroughly discussed some of the troubling issues inherent with Google's terms and privacy policy.

Why is Google really opening up its services to those under 13 and allegedly willing to jump through extra compliance hurdles to comply with COPPA?  According to The Tech Blog of the Mercury News, "[w]hile YouTube is profitable, it may not make as much money as some analysts thought, according to an article in The Information blog (subscription required)." 

According to the Center For Digital Democracy, "Google has a problem.  In order to continue to be the global digital marketing leader, it has to expand its monetizing (the industry term for making cash off us and our data) practices.  Kids are the last nearly untouched market, since COPPA's opt-in and informed parental consent privacy requirements are a serious problem for Google and others who really don't want to respect our privacy online.  Kids (so called "Generation Z" by marketers) are a very lucrative market, spending and influencing billions of dollars each year, including for games, apps and other products.  Companies want to "brand" early and develop lifelong loyalty and, of course, ongoing spending."

Can Google, the most profitable advertising company in the history of the world be trusted to protect our kids' personal and most sensitive information?  Since a company's past actions are generally an excellent indicator of future behavior it would be prudent to examine some of Google's recent history regarding online privacy.  

In 2011, the FTC's groundbreaking agreement with Google banned the company from making future privacy misrepresentations because its Buzz social network had deceptive privacy practices.  Unfortunately for users, Google violated this agreement soon after the ink was dry because in 2012 Google paid a $22.5 million dollar fine for misleading users about its privacy practices.  In 2013, Google entered into a multi-million dollar privacy violation settlement regarding its Street View Project's data collection practices.  Earlier this year, Education Week caught Google scanning student emails in its Google Apps For Education platform for advertising purposes despite denying the practice for years.          

Time Magazine's Jacob Davidson made a very keen observation about why Google wants to offer its services to kids under 13 when he stated, "[a]nother reason for kid-centric services could be a desire by Google to break into the lucrative education market. The company’s Chromebooks are low-cost laptops that might be attractive to schools, but the products are entirely based around Google services." 

If Google officially offers its services to children under 13 years of age, it is almost certain that Facebook, Instagram, Yahoo, etc... will follow.  My concern is that I don't believe most people regardless of their age truly understand how these companies are repurposing the information they are collecting. 

Do Google users know that their search history is being tied to the videos they watch on YouTube and the content in their Gmail accounts and this information is being utilized for behavioral advertising and other non-transparent purposes?  Do Facebook account holders realize that every "Like" and status update is being sent directly to data brokers and this information may be combined with offline behavior which may negatively affect credit scores which may lead to less favorable home and/or auto loan rates?  Do people know that some companies may utilize their personal data for scientific experiments that may emotionally harm them? 

    

In general, a teenager needs to be sixteen before obtaining a restricted drivers license, minors may void contracts entered into before the age of majority (which is usually 18), and in almost every jurisdiction young people may not legally purchase and/or imbibe alcoholic beverages until they become twenty one years old.  These laws are in place because as a society we have deemed them important to reach certain public policy goals. 

Since children are increasingly utilizing digital platforms for not just leisure activities but also for educational purposes why should they be required to waive their personal privacy rights to utilize a particular service?  Why shouldn't digital providers be required to change their privacy policies and data collection practices if they want to cater to children?

Google creates some exciting products and services that may be beneficial to kids.  However, until it changes its troubling privacy policy and demonstrates it won't act "evil" when it comes to safeguarding our children's personal information I don't believe it can be trusted to protect their privacy.  I hope I am wrong but as the famous philosopher George Santayana stated, "those who cannot learn from history are doomed to repeat it".

Copyright 2014 by Shear Law, LLC All rights reserved.

Online Bullies Target Robin Williams Daugther

I grew up watching Robin Williams and loved his work.  When I ran into him in New York City late one night with a friend of mine about 11 years ago he was gracious and funny and even said, "nano nano".  My condolences go out to his family. 

It saddened me to read in the New York Daily News that Robin Williams daughter Zelda Williams was tormented and harassed online for the sole reason she is Robin Williams daughter.  Due to disgusting and hateful things people said about her and/or her father, she stated that she will not utilize her public digital accounts for the near future.  While Twitter "vows to improve" it policies after this incident, what does this really mean?

Ms. Williams just shockingly lost her famous father and within 24 hours was hounded so relentlessly online that it led her to stop posting publicly.  What is wrong with our society?  Ms. Williams has tried to accommodate her father's fans by sharing some intimate details of her personal life with him and is instead criticized for her actions.  Instead of just thanking Ms. Williams for sharing some private moments with her dad and/or sending her condolences some people are tormenting her.          

In the Digital Age, I still believe that "sticks and stones may break my bones but names can never hurt me" applies.  While it may difficult to sometimes see the value of this adage it is more important than ever.  The United States was built upon the foundation of free speech and what may be considered vitriol by one may be nothing more than a personal political opinion.  Even though I find many anonymous online comments to be worthless, I still believe as our founding fathers did that one should have the right to publicly voice their opinions anonymously.      

Copyright 2014 by Shear Law, LLC All rights reserved.

Foursquare App Update Harms User Privacy

According to the Wall Street Journal, as of 8/6/2014, "users who download or update the Foursquare app will automatically let the company track their GPS coordinates any time their phone is powered on. Foursquare previously required users to give the app permission to turn on location-tracking.....Foursquare’s app goes beyond location-tracking features offered by competitors. Social apps like Twitter collect GPS coordinates to give users the option of sharing their location with friends, but don’t collect this data when the app is off."

To justify Foursquare's privacy changes, founder Dennis Crowley stated "more users will be willing to share their location because they’re getting a more valuable service in return."  Has Mr. Crowley read about the NSA Edward Snowden leaks?  According to Wired, "[t]he data you share with Foursquare today could conceivably end up in the hands of the NSA, hackers, or private data brokers tomorrow."

The bottom line is that if you value your personal privacy and safety I would not recommend using the "new and improved" Foursquare.  Do you want to share more personal information with data brokers, insurance companies, colleges, landlords, and future employers who may discriminate against you based upon your Foursquare usage?  If so, Foursquare may be for you. 

Copyright 2014 by Shear Law, LLC All rights reserved.

Union Street Guest House Social Media Wedding Agreement Failure

Many companies still don't understand  social media and the viral nature of the Internet.  The latest corporate social media failure appears to have been brought to you by the hotel Union Street Guest House in Hudson, New York.

According to the New York Post, the Union Street Guest House allegedly inserts into its wedding agreements the phrase:  “If you have booked the inn for a wedding or other type of event . . . and given us a deposit of any kind . . . there will be a $500 fine that will be deducted from your deposit for every negative review . . . placed on any internet site by anyone in your party.”

This is an outrageous clause for any hotel or business to put into their agreements.  How is this clause being enforced?  How does Union Street Guest House know if a negative poster is from your wedding/event party?  What if an imposter makes multiple fake posts to cause the person who booked the party to incur multiple $500 fines?  Does Union Street Guest House troll Yelp, Facebook, Twitter and try to match up their hotel guests with their social media accounts?

This situation reminds me of the Kleargear.com matter. Kleargear.com fined a customer $3,500 for a what appears to be a clearly deserved negative review.  The company claimed that its terms of service allowed it to fine customers under its disparagement clause section.  The customer sued and won $306,000.

The bottom line is that companies should not be in the business of trying to silence their customers via required non-disparagement clauses in their agreements.  This is a very troubling trend that I believe will increase in the near future.  Within minutes of the New York Post publishing its article about this matter, the Internet made an example out of Union Street Guest House.  In less than 24 hours, the hotel received hundreds of negative reviews and then changed its policy. 

Copyright 2014 by Shear Law, LLC All rights reserved.