According to Reuters, U.S. District Judge Phyllis Hamilton in Oakland,
California recently ruled that a lawsuit alleging Facebook violates its users privacy by illegally scanning the contents of messages sent on its platform for advertising purposes may move forward. This lawsuit appears to sound similar to a recent lawsuit against Google for scanning users emails for advertising purposes.
It appears that Facebook is claiming that the scanning of emails for advertising purposes is "an ordinary business practice". Only in the world of Facebook and Google is scanning personal messages for advertising purposes an acceptable "ordinary business practice." Is it an ordinary business practice for the U.S. Postal Service, Federal Express, United Parcel Service, etc... to scan the contents of their packages to build user profiles about senders/receivers for advertising and other purposes? Of course not. Therefore, why do some digital based companies believe this practice is ordinary and should be legal?
According to ArsTecnica, the court "read Facebook's entire terms of service. And, in this case, their
vague language—typically used to provide broad immunity—became a
liability: "[the document] does not establish that users consented to
the scanning of their messages for advertising purposes, and in fact,
makes no mention of 'messages' whatsoever." Thus, the plaintiffs may
have had reason to expect that their messages would remain private. And,
although the practice may have been discontinued, the plaintiffs allege
that Facebook could start scanning messages again whenever it wanted
to."
On Facebook's home page it states, "Connect with friends and the world around you on Facebook".
Nowhere does it state that your messages will be scanned for
advertising purposes. Should Facebook and other digital properties such as Google that
are actually digital advertising platforms that masquerade as other services be required to have clear warnings every time a user sends and/or opens up a message (or uses other services) from their platform? The FDA recently created new calorie labeling rules to better inform Americans about the foods they eat so should the FTC create rules that require digital platforms to be more transparent about their practices to better protect the privacy and safety of its citizens?
The biggest challenge for plaintiffs moving forward may be to identify how Facebook's actions have financially harmed them. Unfortunately, the court system in general has been slow to recognize privacy harms absent a direct monetary loss from a practice. Will the Sony Hack change this mentality? We may find out in the new year.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Friday, December 26, 2014
Court: Police May Create Fake Social Media Profiles To Catch Criminals
According to CNN, a federal judge recently ruled that law enforcement officials may create fake social media profiles to obtain access to a suspect's social media account. The police may entice suspects to "friend" them and use the information gleaned from their Facebook, Instagram, etc... accounts against them in court.
This ruling is not surprising. The police have utilized moles and undercover agents to gain access to crime syndicates and gangs for years and this ruling appears to extend this practice to the Digital Age. As long as the "friending" is mutual, meaning that a suspect allows a "fake profile" to access their account the "search" may be deemed consensual.
Facebook has protested law enforcement's use of fake profiles in the past. For example, several months ago, Facebook sent a letter to the DEA to demand that it stop creating fake accounts on their platform. Facebook cares about this issue, not because of the privacy implications to its users, but because it may interfere with its ability to monetize the data being created on their platforms. A fake account is worthless to data brokers, advertisers, etc....
I don't encourage anyone who values their privacy to utilize Facebook to post personal information. Everything one posts to Facebook may end up in the hands of data brokers, law enforcement officials, etc... Facebook is an advertising platform and its users are the products it sells to marketers and data brokers. I don't trust Facebook with my personal information. Should you?
Copyright 2014 by Shear Law, LLC. All rights reserved.
This ruling is not surprising. The police have utilized moles and undercover agents to gain access to crime syndicates and gangs for years and this ruling appears to extend this practice to the Digital Age. As long as the "friending" is mutual, meaning that a suspect allows a "fake profile" to access their account the "search" may be deemed consensual.
Facebook has protested law enforcement's use of fake profiles in the past. For example, several months ago, Facebook sent a letter to the DEA to demand that it stop creating fake accounts on their platform. Facebook cares about this issue, not because of the privacy implications to its users, but because it may interfere with its ability to monetize the data being created on their platforms. A fake account is worthless to data brokers, advertisers, etc....
I don't encourage anyone who values their privacy to utilize Facebook to post personal information. Everything one posts to Facebook may end up in the hands of data brokers, law enforcement officials, etc... Facebook is an advertising platform and its users are the products it sells to marketers and data brokers. I don't trust Facebook with my personal information. Should you?
Copyright 2014 by Shear Law, LLC. All rights reserved.
Tuesday, December 23, 2014
FTC Warns Children's Apps Maker About Potential COPPA Violations
The FTC recently sent a letter to a Chinese based children's app maker alleging that it may be in violation of the Children's Online Privacy Protection Act (COPPA). According to the allegations, "it appears the child-directed applications marketed by
the company, BabyBus, appear to collect precise geolocation information
about users" without parental consent.
COPPA requires companies collecting personal information from children under 13 to post clear privacy policies and to notify parents and get their consent before collecting or sharing any information from children. While this app is not the only one that has allegedly violated COPPA and/or collected more information than needed to operate, it demonstrates a very troubling trend in apps: privacy by design continues to be an afterthought.
While I believe the FTC's letter is a positive development, it demonstrates the need for constant vigilance to protect our children's privacy. In general, it is none of the app's business where my children live, go to school, play, etc....
Copyright 2014 by Shear Law, LLC. All rights reserved.
COPPA requires companies collecting personal information from children under 13 to post clear privacy policies and to notify parents and get their consent before collecting or sharing any information from children. While this app is not the only one that has allegedly violated COPPA and/or collected more information than needed to operate, it demonstrates a very troubling trend in apps: privacy by design continues to be an afterthought.
While I believe the FTC's letter is a positive development, it demonstrates the need for constant vigilance to protect our children's privacy. In general, it is none of the app's business where my children live, go to school, play, etc....
Copyright 2014 by Shear Law, LLC. All rights reserved.
A Sony Hack Lesson: Digital Privacy and Cyber Security Go Hand and Hand
The Sony hack has taught us many lessons about digital privacy and cyber security. One of the biggest lessons is to be careful about what you put in an email. Another is to ensure that proper email retention policies are in place. A third lesson is that employees need to be better trained about these issues. As privacy law expert Prof. Dan Solove recently stated, there are real harms when one's privacy is breached.
According to multiple published reports, the FBI has named North Korea as the prime suspect in the hacking attack. If North Korea directed or encouraged those responsible for the hack because it wasn't happy with the theme of the movie The Interview it opens up a new front on what companies will have to prepare for when a business decision may not be popular with a foreign government or a well funded adversary.
If a nation state such as North Korea or a well funded organization is determined to hack into a corporate computer system it will do so. Companies can take steps to reduce the risk by creating new digital policies, training their employees, installing new cyber security systems, taking certain systems offline, etc...
The Sony hack has exposed most if not all of its secrets for all to see. From the troubling gender pay gap to the leak of social security numbers, personal health care records, corporate budgets, etc...the hack has greatly damaged Sony's reputation. While Sony may eventually be able to recover from this very troubling matter, it wouldn't surprise me if multiple executives leave the company in the near future due to what is contained in their emails.
The bottom line is that the most state of the art cyber security system may not protect against human error or stupidity. Therefore, it is imperative to constantly train and educate employees about digital privacy and cyber security matters. Privacy is something we take for granted until it has been lost. With the right education and mindset, privacy and cyber security doesn't have to be a luxury.
Copyright 2014 by Shear Law, LLC. All rights reserved.
According to multiple published reports, the FBI has named North Korea as the prime suspect in the hacking attack. If North Korea directed or encouraged those responsible for the hack because it wasn't happy with the theme of the movie The Interview it opens up a new front on what companies will have to prepare for when a business decision may not be popular with a foreign government or a well funded adversary.
If a nation state such as North Korea or a well funded organization is determined to hack into a corporate computer system it will do so. Companies can take steps to reduce the risk by creating new digital policies, training their employees, installing new cyber security systems, taking certain systems offline, etc...
The Sony hack has exposed most if not all of its secrets for all to see. From the troubling gender pay gap to the leak of social security numbers, personal health care records, corporate budgets, etc...the hack has greatly damaged Sony's reputation. While Sony may eventually be able to recover from this very troubling matter, it wouldn't surprise me if multiple executives leave the company in the near future due to what is contained in their emails.
The bottom line is that the most state of the art cyber security system may not protect against human error or stupidity. Therefore, it is imperative to constantly train and educate employees about digital privacy and cyber security matters. Privacy is something we take for granted until it has been lost. With the right education and mindset, privacy and cyber security doesn't have to be a luxury.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Tuesday, December 16, 2014
Netherlands Privacy Regulator To Investigate Facebook's Privacy Policy
The Netherlands privacy regulator has announced an investigation into Facebook's recently announced privacy policy change that is scheduled to go into effect on January 1, 2015. Facebook's new privacy policy states that it has the right to use the information provided by its users through their posts, messages, and other online interactions for commercial purposes. This change is not very surprising since Facebook makes most of its money via behavioral advertising.
Due to the agreements that Facebook has with data brokers and its tracking capabilities across the Internet and devices, I do not trust the company with my personal data or my children's personal information. I choose not to share my personal thoughts on Facebook because the information may be shared with not only data brokers and marketers, but also insurance companies, the government, etc... My personal thoughts, data points, etc... may then be utilized against me in ways I never intended.
It is a welcome trend that European data protection regulators are investigating Facebook and fining companies such as Google for violating the personal privacy of users. My hope is that the FTC and state attorney generals follow in their footsteps and require these companies and others to become more transparent about their digital collection and utilization practices and impose fines when they have made misrepresentations about their activities.
Facebook and Google are two of the most successful advertising companies in the world. However, both of these companies appear to perform similar functions as some telecommunications entities and data brokers. Should these companies and others with similar privacy policies and practices be regulated as such?
Copyright 2014 by Shear Law, LLC. All rights reserved.
Due to the agreements that Facebook has with data brokers and its tracking capabilities across the Internet and devices, I do not trust the company with my personal data or my children's personal information. I choose not to share my personal thoughts on Facebook because the information may be shared with not only data brokers and marketers, but also insurance companies, the government, etc... My personal thoughts, data points, etc... may then be utilized against me in ways I never intended.
It is a welcome trend that European data protection regulators are investigating Facebook and fining companies such as Google for violating the personal privacy of users. My hope is that the FTC and state attorney generals follow in their footsteps and require these companies and others to become more transparent about their digital collection and utilization practices and impose fines when they have made misrepresentations about their activities.
Facebook and Google are two of the most successful advertising companies in the world. However, both of these companies appear to perform similar functions as some telecommunications entities and data brokers. Should these companies and others with similar privacy policies and practices be regulated as such?
Copyright 2014 by Shear Law, LLC. All rights reserved.
Iowa Digital License App Has Major 4th Amendment Implications
Wouldn't it be great if we didn't have to carry around a wallet with a driver's license, credit cards, ATM cards, health insurance cards, etc...? As Apple famously trademarked and states in some of its commercials, "There's an app for that". For almost every interaction we have in the real world, software developers are creating apps to allegedly make our lives "easier" and more "frictionless".
In the tech world, "frictionless" may mean making it very easy to "share your personal thoughts, viewing habits, etc...without violating privacy laws", or making it very easy to "make online purchases." This is why so many companies are rushing to create apps for users. Unfortunately, multiple FTC reports have found many apps lack proper disclosures which may in turn lead to data leakage which creates cyber safety challenges for users.
The latest app that aims to make our lives "easier" is an app that may replace a physical Iowa driver's license. At first glance, this sounds great. Since more and more people are using their smartphones to do every day tasks and these mini computers hold so much of our personal information why not utilize an app which would mean one less thing (physical driver's license) to carry around?
There are numerous questions that still need to be answered. If a person who uses the app is questioned by a police officer during a "routine traffic stop" or a "stop and frisk" and asked to show the driver's license app will a police officer be able to access other parts of the phone or will a password be needed? What happens if a text message, email, or phone call comes through at the moment the police officer is reviewing the app license? Will the police officer be able to see the sender of the message, or the contents of the communications, or the phone number of the caller? When downloading the app, will it request access to your contacts or want to see what other apps you have downloaded like Twitter?
According to the recent Supreme Court decision in Hein v. North Carolina, the police may stop a car based on a "reasonable" misunderstanding of the law. What if while reviewing a driver's license app a police officer "misunderstands the law" and searches your smartphone, or makes subtle threats about providing access to your smartphone?
The bottom line is that there are still many questions that need to be answered regarding this new app. As more and more of our lives become digital, it is imperative that app developers work closely with lawyers and regulators to ensure that privacy by design is part and parcel of the process. While we may not know all of the potential consequences of utilizing driver's license apps, it is important that we have a national conversation about these issues to ensure that our 4th amendment rights are properly protected in the Digital Age.
Copyright 2014 by Shear Law, LLC. All rights reserved.
In the tech world, "frictionless" may mean making it very easy to "share your personal thoughts, viewing habits, etc...without violating privacy laws", or making it very easy to "make online purchases." This is why so many companies are rushing to create apps for users. Unfortunately, multiple FTC reports have found many apps lack proper disclosures which may in turn lead to data leakage which creates cyber safety challenges for users.
The latest app that aims to make our lives "easier" is an app that may replace a physical Iowa driver's license. At first glance, this sounds great. Since more and more people are using their smartphones to do every day tasks and these mini computers hold so much of our personal information why not utilize an app which would mean one less thing (physical driver's license) to carry around?
There are numerous questions that still need to be answered. If a person who uses the app is questioned by a police officer during a "routine traffic stop" or a "stop and frisk" and asked to show the driver's license app will a police officer be able to access other parts of the phone or will a password be needed? What happens if a text message, email, or phone call comes through at the moment the police officer is reviewing the app license? Will the police officer be able to see the sender of the message, or the contents of the communications, or the phone number of the caller? When downloading the app, will it request access to your contacts or want to see what other apps you have downloaded like Twitter?
According to the recent Supreme Court decision in Hein v. North Carolina, the police may stop a car based on a "reasonable" misunderstanding of the law. What if while reviewing a driver's license app a police officer "misunderstands the law" and searches your smartphone, or makes subtle threats about providing access to your smartphone?
The bottom line is that there are still many questions that need to be answered regarding this new app. As more and more of our lives become digital, it is imperative that app developers work closely with lawyers and regulators to ensure that privacy by design is part and parcel of the process. While we may not know all of the potential consequences of utilizing driver's license apps, it is important that we have a national conversation about these issues to ensure that our 4th amendment rights are properly protected in the Digital Age.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Monday, December 15, 2014
Netherlands May Fine Google Millions of Euros For Privacy Law Violations
According to The Wall Street Journal, Google may soon be fined the equivalent of $19 million dollars by the Netherlands Data Protection Authority for violating privacy laws. The Dutch privacy regulator announced earlier today that Google collects and combines
personal data for advertising purposes without obtaining user consent. The threat of a fine follows a 900,000 euro-penalty from Spain’sdata privacy regulator last year and another 150,000 euro penalty Google received earlier this year.
In 2012, Google consolidated most of its privacy policies into one comprehensive policy that enables it to combine almost all information it gains about its users. This troubling change demonstrated that Google doesn't care about its users privacy. Google's platforms are not built with privacy by design in place. It is an advertising company disguised as a search engine and communications provider. This business model has created the most successful advertising entity in the history of the world.
During the past several years, Google has been fined tens of millions of dollars by the FTC, state attorney generals, and European regulators for violating privacy laws. Regulator fines are designed to stop and deter illegal behavior. Google makes so much money from the data it mines on its users that it may be cheaper for it to continue to pay fines for bad behavior instead of changing its business practices. Until regulators around the world are provided the tools that have the teeth required to deter Google and other companies from harming our privacy this troubling behavior will continue.
Will 2015 be the year that legislators and regulators really clamp down on digital data collection and usage? Time will only tell.
Copyright 2014 by Shear Law, LLC. All rights reserved.
In 2012, Google consolidated most of its privacy policies into one comprehensive policy that enables it to combine almost all information it gains about its users. This troubling change demonstrated that Google doesn't care about its users privacy. Google's platforms are not built with privacy by design in place. It is an advertising company disguised as a search engine and communications provider. This business model has created the most successful advertising entity in the history of the world.
During the past several years, Google has been fined tens of millions of dollars by the FTC, state attorney generals, and European regulators for violating privacy laws. Regulator fines are designed to stop and deter illegal behavior. Google makes so much money from the data it mines on its users that it may be cheaper for it to continue to pay fines for bad behavior instead of changing its business practices. Until regulators around the world are provided the tools that have the teeth required to deter Google and other companies from harming our privacy this troubling behavior will continue.
Will 2015 be the year that legislators and regulators really clamp down on digital data collection and usage? Time will only tell.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Thursday, December 11, 2014
The Sony Hack, Corporate Email Acceptable Use Policies, and Legal Liability
The Sony email hack has become a nightmare for the company, its employees, and those who interacted with Sony via its corporate digital systems. The New York Times, The New York Daily News, and The New York Post are reporting on the contents of some very damaging leaked emails between its corporate executives on all sorts of subjects. For example, Gawker discussed the contents of some unflattering Sony emails about the upcoming Steve Jobs biopic; while Buzzfeed reported on some emails that may contain racist comments about the President.
While the Apple iCloud hacking scandal embarrassed many famous people who had their naked images stolen from their iCloud accounts, the images were on personal accounts and meant for personal consumption. There was an expectation of privacy. However, this hack is different because it focused on the contents of corporate data systems.
Most companies have email acceptable use policies and it is possible that some of the leaked correspondence may have been in violation of these standards. While it is too soon to speculate since not all of the facts are publicly known, Sony may also have significant compliance, regulatory, and legal liability associated with the matter.
Will any of Sony's executives be terminated due to the contents in their leaked emails? Will this incident change people's digital behavior? Will the hackers ever be caught? Which company is next? These are some of the many questions that may soon be answered.
Copyright 2014 by Shear Law, LLC. All rights reserved.
While the Apple iCloud hacking scandal embarrassed many famous people who had their naked images stolen from their iCloud accounts, the images were on personal accounts and meant for personal consumption. There was an expectation of privacy. However, this hack is different because it focused on the contents of corporate data systems.
Most companies have email acceptable use policies and it is possible that some of the leaked correspondence may have been in violation of these standards. While it is too soon to speculate since not all of the facts are publicly known, Sony may also have significant compliance, regulatory, and legal liability associated with the matter.
Will any of Sony's executives be terminated due to the contents in their leaked emails? Will this incident change people's digital behavior? Will the hackers ever be caught? Which company is next? These are some of the many questions that may soon be answered.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Wednesday, December 10, 2014
Harvard, Digital Reputation, Social Media, and Chinese Food
Never put in an email anything that may embarrass you if it were to show up on the front page of the New York Times or in this case Boston.com. According to Boston.com, Harvard Business School Professor Ben Edelman got into an email war of words with a local Chinese food restaurant after he realized that its online menu had outdated takeout prices and that he was charged $4 dollars more than what was listed online.
Should the restaurant have an accurate online take out menu? Yes. Online prices should accurately reflect current prices. While Prof. Edelman cites potential violations of Massachusetts law, he could have also mentioned that the matter was a potential Article 5 Violation of the FTC Act regarding unfair and deceptive trade practices. Is a class action lawsuit or an FTC complaint coming soon?
Even though it appears that Prof. Edelman utilized his personal email account when interacting with the Chinese food restaurant, what if he utilized his professional account? Since Harvard has closely monitored the emails of some of its deans in the past, could this situation trigger Harvard to search through Prof. Edelman's Harvard account to determine if he has violated any of its rules regarding personal use of Harvard's computer accounts or systems?
Due to social media, every time Ben Edelman is Binged, Googled, Yahooed!, etc.. this situation may show up on the first page of his search results. Whenever I hear the name Ben Edelman, I will think about Chinese food and a $4 overcharge. However, this should also be a lesson to all businesses that they must ensure that their online advertised prices accurately reflect current prices.
The Digital Age has made our personal online activities more discoverable and it has eroded our personal privacy. Even though Prof. Edelman was right regarding the need for businesses to have the correct prices listed on their websites, the way he handled the situation may create some potential reputation issues for him both personally and professionally. The bottom line is that it is imperative to be careful whenever sending a digital correspondence.
UPDATE: 4:49pm
Boston.com is reporting that Prof. Edelman has released an apology. Here it is:
"Many people have seen my emails with Ran Duan of Sichuan Garden restaurant in Brookline. Having reflected on my interaction with Ran, including what I said and how I said it, it’s clear that I was very much out of line. I aspire to act with great respect and humility in dealing with others, no matter what the situation. Clearly I failed to do so. I am sorry, and I intend to do better in the future. I have reached out to Ran and will apologize to him personally as well.”
Copyright 2014 by Shear Law, LLC. All rights reserved.
Should the restaurant have an accurate online take out menu? Yes. Online prices should accurately reflect current prices. While Prof. Edelman cites potential violations of Massachusetts law, he could have also mentioned that the matter was a potential Article 5 Violation of the FTC Act regarding unfair and deceptive trade practices. Is a class action lawsuit or an FTC complaint coming soon?
Even though it appears that Prof. Edelman utilized his personal email account when interacting with the Chinese food restaurant, what if he utilized his professional account? Since Harvard has closely monitored the emails of some of its deans in the past, could this situation trigger Harvard to search through Prof. Edelman's Harvard account to determine if he has violated any of its rules regarding personal use of Harvard's computer accounts or systems?
Due to social media, every time Ben Edelman is Binged, Googled, Yahooed!, etc.. this situation may show up on the first page of his search results. Whenever I hear the name Ben Edelman, I will think about Chinese food and a $4 overcharge. However, this should also be a lesson to all businesses that they must ensure that their online advertised prices accurately reflect current prices.
The Digital Age has made our personal online activities more discoverable and it has eroded our personal privacy. Even though Prof. Edelman was right regarding the need for businesses to have the correct prices listed on their websites, the way he handled the situation may create some potential reputation issues for him both personally and professionally. The bottom line is that it is imperative to be careful whenever sending a digital correspondence.
UPDATE: 4:49pm
Boston.com is reporting that Prof. Edelman has released an apology. Here it is:
"Many people have seen my emails with Ran Duan of Sichuan Garden restaurant in Brookline. Having reflected on my interaction with Ran, including what I said and how I said it, it’s clear that I was very much out of line. I aspire to act with great respect and humility in dealing with others, no matter what the situation. Clearly I failed to do so. I am sorry, and I intend to do better in the future. I have reached out to Ran and will apologize to him personally as well.”
Copyright 2014 by Shear Law, LLC. All rights reserved.
Wednesday, November 26, 2014
Twitter's App Graph Privacy Fail Whale: Will The FTC Investigate?
Wishing everyone a Happy and Healthy Thanksgiving! Before leaving the office for the Thanksgiving Holiday, I noticed that Twitter has made a troubling announcement about its privacy practices moving forward for its iOS and Andoid users. According to the Wall Street Journal, "Twitter
is now collecting information about the apps installed on users’
devices in order to better target and tailor advertising and other
content to them."
Twitter announced, "[t]o help build a more personal Twitter experience for you, we are collecting and occasionally updating the list of apps installed on your mobile device so we can deliver tailored content that you might be interested in."
Mashable has reported that, "[o]nce the update goes live, users are automatically opted-in to the tracking, though Twitter will notify users within the app once it starts and you can opt out at any time. Twitter notes that it is only tracking a list of the apps users have downloaded and is not accessing any data within those apps."
In general, most digital and social media platforms are not built with privacy by design in mind. For example, Facebook and Google are notorious for their very troubling privacy policies and practices which demonstrate that user privacy is an afterthought for these companies.
It is none of Twitter's business what apps I have uploaded on my mobile device. Period. End of story. Twitter has a right to monitor the apps I have connected to their platform; however, it has no right whatsoever to automatically know what apps I have downloaded onto my mobile device just because I have downloaded its app. Under no circumstances should this be opt-out. This is a very troubling issue that may lead more apps to do the same thing.
During the past couple of years, the FTC has published multiple reports on the troubling privacy practices of some mobile apps and ecosystems. Does Twitter even have the legal right to automatically opt-in users for this program? Since this was announced right before Thanksgiving, it leads me to believe that Twitter may be trying to bury this troubling matter right before a holiday weekend. Will the FTC soon open an investigation into this issue?
The bottom line is that Twitter and other digital companies should make their defaults opt-in. Opt-out defaults are a threat to personal privacy and safety. I am fully aware of the corporate monetary reasons for automatic opt-in. Wall Street has been disappointed with Twitter's revenue performance and recently punished its stock so this automatic opt-in to the App Graph may be an attempt to increase the corporate bottom line.
If Twitter and other social/digital media companies such as Facebook and Google want me to trust them with my personal and/or corporate data they need to make privacy a priority and not an afterthought.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Twitter announced, "[t]o help build a more personal Twitter experience for you, we are collecting and occasionally updating the list of apps installed on your mobile device so we can deliver tailored content that you might be interested in."
Mashable has reported that, "[o]nce the update goes live, users are automatically opted-in to the tracking, though Twitter will notify users within the app once it starts and you can opt out at any time. Twitter notes that it is only tracking a list of the apps users have downloaded and is not accessing any data within those apps."
In general, most digital and social media platforms are not built with privacy by design in mind. For example, Facebook and Google are notorious for their very troubling privacy policies and practices which demonstrate that user privacy is an afterthought for these companies.
It is none of Twitter's business what apps I have uploaded on my mobile device. Period. End of story. Twitter has a right to monitor the apps I have connected to their platform; however, it has no right whatsoever to automatically know what apps I have downloaded onto my mobile device just because I have downloaded its app. Under no circumstances should this be opt-out. This is a very troubling issue that may lead more apps to do the same thing.
During the past couple of years, the FTC has published multiple reports on the troubling privacy practices of some mobile apps and ecosystems. Does Twitter even have the legal right to automatically opt-in users for this program? Since this was announced right before Thanksgiving, it leads me to believe that Twitter may be trying to bury this troubling matter right before a holiday weekend. Will the FTC soon open an investigation into this issue?
The bottom line is that Twitter and other digital companies should make their defaults opt-in. Opt-out defaults are a threat to personal privacy and safety. I am fully aware of the corporate monetary reasons for automatic opt-in. Wall Street has been disappointed with Twitter's revenue performance and recently punished its stock so this automatic opt-in to the App Graph may be an attempt to increase the corporate bottom line.
If Twitter and other social/digital media companies such as Facebook and Google want me to trust them with my personal and/or corporate data they need to make privacy a priority and not an afterthought.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Monday, November 24, 2014
Supreme Court To Decide Groundbreaking Social Media Speech Case
In general, it takes the Supreme Court years to address an issue and by the time a matter is resolved the technology utilized in the case may be obsolete. For example, in 2010, the Supreme Court ruled on a sexting and workplace privacy case (City of Ontario, California et al v. Quon) that began in 2002. By 2010, many employers had switched from providing pagers to smartphones to communicate with some of their employees. While technology had greatly changed during those 8 years, the underlying issues litigated were and still are very relevant today.
A new case before the U.S. Supreme Court may determine when does a social media threat cross the line and violate the law. According to The Washington Post, the court will decide "whether violent images and threatening language posted on Facebook and other social media constitute a true threat to others or simply [the] protected rants..."
The basic facts of the case are that a man was sentenced to approximately 4 years in prison (and served the sentence) for posting allegedly disturbing messages on Facebook about his estranged wife, co-workers, and law enforcement. It appears that some of the people who viewed the man's Facebook messages were concerned for their personal safety and/or the safety of others so the appropriate authorities were made aware of the situation which led to the matter ending up in court.
With more and more communications occurring online, this case has the potential to radically change how we utilize and communicate as a society. This case also may change how the law views First Amendment protections in the Digital Age.
The Supreme Court needs to strike the right balance between protecting our First Amendment rights and public safety. What should the test be when determining whether social media speech violates the law? Should the test be how a reasonable person may view the postings or should the test be whether a person has the intent to follow through with the online threats?
My hope is that Supreme Court creates a framework that properly weighs First Amendment rights with public safety that may be easily applied to similar situations in the future. While this case may be the first major social media freedom of speech matter that is decided by the high court, I doubt it will be the last.
Copyright 2014 by Shear Law, LLC. All rights reserved.
A new case before the U.S. Supreme Court may determine when does a social media threat cross the line and violate the law. According to The Washington Post, the court will decide "whether violent images and threatening language posted on Facebook and other social media constitute a true threat to others or simply [the] protected rants..."
The basic facts of the case are that a man was sentenced to approximately 4 years in prison (and served the sentence) for posting allegedly disturbing messages on Facebook about his estranged wife, co-workers, and law enforcement. It appears that some of the people who viewed the man's Facebook messages were concerned for their personal safety and/or the safety of others so the appropriate authorities were made aware of the situation which led to the matter ending up in court.
With more and more communications occurring online, this case has the potential to radically change how we utilize and communicate as a society. This case also may change how the law views First Amendment protections in the Digital Age.
The Supreme Court needs to strike the right balance between protecting our First Amendment rights and public safety. What should the test be when determining whether social media speech violates the law? Should the test be how a reasonable person may view the postings or should the test be whether a person has the intent to follow through with the online threats?
My hope is that Supreme Court creates a framework that properly weighs First Amendment rights with public safety that may be easily applied to similar situations in the future. While this case may be the first major social media freedom of speech matter that is decided by the high court, I doubt it will be the last.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Saturday, November 15, 2014
Britain Jails First Revenge Porn Perp
According to The Guardian, the UK has jailed its first revenge porn perpetrator. Luke King, 21 has been jailed for posting revenge porn online. He was given a 12-week sentence after pleading guilty to
online harassment.
It appears that Mr. King had published naked photos of a woman on WhatsApp earlier this year after threatening her. On October 13, 2014, I discussed that the UK was set to criminalize revenge porn because it is a growing problem not only in the UK but also around the world.
While a 12-week sentence may not sound like much for harassing someone online, it may make someone think twice before posting compromising photos of others in the future. It is too soon to speculate whether the UK's new revenge porn law is a strong enough deterrence.
The law is constantly trying to catch up with technology so it doesn't surprise me that this may be the first case in the UK where someone was jailed for uploading revenge porn. A major challenge with revenge porn is the likelihood of needing to play a game of whack a mole to remove it from the Internet. Once content is posted online it is extremely difficult for it to be permanently removed.
Copyright 2014 by Shear Law, LLC. All rights reserved.
It appears that Mr. King had published naked photos of a woman on WhatsApp earlier this year after threatening her. On October 13, 2014, I discussed that the UK was set to criminalize revenge porn because it is a growing problem not only in the UK but also around the world.
While a 12-week sentence may not sound like much for harassing someone online, it may make someone think twice before posting compromising photos of others in the future. It is too soon to speculate whether the UK's new revenge porn law is a strong enough deterrence.
The law is constantly trying to catch up with technology so it doesn't surprise me that this may be the first case in the UK where someone was jailed for uploading revenge porn. A major challenge with revenge porn is the likelihood of needing to play a game of whack a mole to remove it from the Internet. Once content is posted online it is extremely difficult for it to be permanently removed.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Monday, October 27, 2014
California Highway Patrol Nude Photo Theft Scandal May Create Hundreds of Millions In Legal Liability
The Contra Costa Times is reporting that a California Highway Patrol
officer has been "accused of stealing nude photos from a DUI suspect's phone" and "that he and his fellow officers have been trading such
images for years." This behavior is not only very troubling, it may violate multiple federal and state computer theft laws and may even trigger California's revenge porn statute.
The Contra Costa Times further states, "[i]n the search warrant affidavit [for the matter], senior Contra Costa district attorney inspector Darryl Holcombe wrote that he found probable cause to show both CHP officers Harrington and Hazelwood and others engaged in a "scheme to unlawfully access the cell phone of female arrestees by intentionally gaining access to their cell phone and without their knowledge, stealing and retaining nude or partially clothed photographs of them."
This alleged behavior demonstrates why the Riley v. California case is so important. In that matter, the U.S. Supreme Court held 9-0 that the police generally need a warrant before searching cell phones and electronic devices of those arrested. All of the facts of this case have not yet been proven so it is difficult to determine exactly in what manner the victims had their phones searched and their personal images stolen and forwarded to others.
Johns Hopkins Hospital recently paid $190 million dollars to settle a matter where a doctor had taken thousands of nude photos of patients without their consent. In that case, there was no evidence the photos had been shared. However, in this case, court documents allege that images had been shared. Therefore, the Johns Hopkins Hospital $190 million dollar settlement may be a benchmark for any potential settlement.
In general, many organizations need to do a better job of training their employees about digital usage and legal matters. Here, since those who are accused of wrong doing are police officers they should have known that their alleged behavior may violate multiple state and/or federal laws.
Copyright 2014 by Shear Law, LLC. All rights reserved.
The Contra Costa Times further states, "[i]n the search warrant affidavit [for the matter], senior Contra Costa district attorney inspector Darryl Holcombe wrote that he found probable cause to show both CHP officers Harrington and Hazelwood and others engaged in a "scheme to unlawfully access the cell phone of female arrestees by intentionally gaining access to their cell phone and without their knowledge, stealing and retaining nude or partially clothed photographs of them."
This alleged behavior demonstrates why the Riley v. California case is so important. In that matter, the U.S. Supreme Court held 9-0 that the police generally need a warrant before searching cell phones and electronic devices of those arrested. All of the facts of this case have not yet been proven so it is difficult to determine exactly in what manner the victims had their phones searched and their personal images stolen and forwarded to others.
Johns Hopkins Hospital recently paid $190 million dollars to settle a matter where a doctor had taken thousands of nude photos of patients without their consent. In that case, there was no evidence the photos had been shared. However, in this case, court documents allege that images had been shared. Therefore, the Johns Hopkins Hospital $190 million dollar settlement may be a benchmark for any potential settlement.
In general, many organizations need to do a better job of training their employees about digital usage and legal matters. Here, since those who are accused of wrong doing are police officers they should have known that their alleged behavior may violate multiple state and/or federal laws.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Friday, October 17, 2014
TV Show Scandal Sex Tape Episode and Sextortion
The TV show Scandal contains the type of story lines needed for a successful television program: sex, scandals, beautiful people, politics, power, money, etc.... According to Wikipedia, the plot centers around, "Olivia Pope (Kerry Washington) [who] is a former White House Communications Director for the President of the United States who has left to start her own crisis management firm, Olivia Pope & Associates. Olivia has decided to dedicate her life to protecting the public images of the nation's elite but is finding that no matter how hard she tries, she cannot leave parts of her past behind."
Last night's episode centered around the President's daughter slipping her Secret Service detail and doing drugs and creating a threesome sex tape with a couple of boys/young men she has never met before having sex with them. Olivia Pope's team was called into action and asked to do what was necessary to delete the photos and avoid a scandal for the First Family.
Olivia's employees utilize social media and what may be considered NSA tactics combined with good old fashion detective work to track down the boys/young men who had sex with the president's daughter and then filmed it. As the episode progresses, it appears that the president's daughter was targeted because the parents of one of the boys/young men demand $2.5 million dollars to turn over all copies of the embarrassing sex tape.
The fictional parents live near my office in Bethesda and sound as though they were already very well off. After Olivia has received the authority to pay $2.5 million dollars to ensure that the video and all copies are destroyed, the parents demand an additional $500,000. This angers Olivia and she turns the tables on the black mailers and threatens to ruin them due to their despicable behavior. The bottom line is that the sex tape is destroyed and it appears that no blackmail money was paid.
Digital black mail has been a troubling growing trend. As USA Today reported earlier this year, the crime of sextortion against children is an epidemic. Once content has been put into a digital format, texted, and uploaded to the cloud it is very difficult to delete. Even technology experts are not sure if content uploaded online can be deleted.
While Scandal is a fictitious television program, some of the story lines are based upon real events. Not everyone has the resources available to clean up a sex tape incident. Even celebrities who may have the money to make a sex tape "disappear" are unable to protect themselves from a sex tape scandal.
The bottom line is that it is imperative to protect your privacy at all times. You never know who may use their cell phone or other digital device as a digital extortion weapon.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Last night's episode centered around the President's daughter slipping her Secret Service detail and doing drugs and creating a threesome sex tape with a couple of boys/young men she has never met before having sex with them. Olivia Pope's team was called into action and asked to do what was necessary to delete the photos and avoid a scandal for the First Family.
Olivia's employees utilize social media and what may be considered NSA tactics combined with good old fashion detective work to track down the boys/young men who had sex with the president's daughter and then filmed it. As the episode progresses, it appears that the president's daughter was targeted because the parents of one of the boys/young men demand $2.5 million dollars to turn over all copies of the embarrassing sex tape.
The fictional parents live near my office in Bethesda and sound as though they were already very well off. After Olivia has received the authority to pay $2.5 million dollars to ensure that the video and all copies are destroyed, the parents demand an additional $500,000. This angers Olivia and she turns the tables on the black mailers and threatens to ruin them due to their despicable behavior. The bottom line is that the sex tape is destroyed and it appears that no blackmail money was paid.
Digital black mail has been a troubling growing trend. As USA Today reported earlier this year, the crime of sextortion against children is an epidemic. Once content has been put into a digital format, texted, and uploaded to the cloud it is very difficult to delete. Even technology experts are not sure if content uploaded online can be deleted.
While Scandal is a fictitious television program, some of the story lines are based upon real events. Not everyone has the resources available to clean up a sex tape incident. Even celebrities who may have the money to make a sex tape "disappear" are unable to protect themselves from a sex tape scandal.
The bottom line is that it is imperative to protect your privacy at all times. You never know who may use their cell phone or other digital device as a digital extortion weapon.
Copyright 2014 by Shear Law, LLC. All rights reserved.
Thursday, October 16, 2014
Will The FTC Soon Investigate Whisper For Deceptive Privacy Promises?
Will the Federal Trade Commission soon investigate the app Whisper for false and misleading privacy promises? The Guardian recently reported some very troubling allegations about Whisper that if true lead me to believe that the app may soon be contacted by the Federal Trade Commission to fully explain the matter.
According to The Guardian, Whisper "is tracking the location of its users, including some who have specifically asked not to be followed." This may be a violation of Article 5 of the FTC Act regarding unfair and deceptive trade practices. Earlier this year, the FTC alleged that Snapchat, "deceived consumers over the amount of personal data it collected and the security measures taken to protect that data from misuse and unauthorized disclosure....According to the FTC’s complaint, Snapchat made multiple misrepresentations to consumers about its product that stood in stark contrast to how the app actually worked."
Whisper's actions after learning that The Guardian was about to publish its story are very disturbing. For example, according to The Guardian, after learning about the upcoming story Whisper rewrote its terms of service to "explicitly permit the company to establish the broad location of people who have disabled the app’s geo-location feature." In addition, The Guardian reported that Whisper recently changed its privacy policy from it “is committed to protecting your privacy and the security of personally identifying information” to “our goal is to provide you with a tool that allows you to express yourself while remaining anonymous to the community."
Whisper's terms of service and privacy policy govern its relationship with its users. Whisper's response to The Guardian's allegations do not appear to address why its terms of service and privacy policy were changed. Are these changes an acknowledgement that Whisper has been making unfair and deceptive privacy promises about its app?
Copyright 2014 by Shear Law, LLC. All rights reserved.
According to The Guardian, Whisper "is tracking the location of its users, including some who have specifically asked not to be followed." This may be a violation of Article 5 of the FTC Act regarding unfair and deceptive trade practices. Earlier this year, the FTC alleged that Snapchat, "deceived consumers over the amount of personal data it collected and the security measures taken to protect that data from misuse and unauthorized disclosure....According to the FTC’s complaint, Snapchat made multiple misrepresentations to consumers about its product that stood in stark contrast to how the app actually worked."
Whisper's actions after learning that The Guardian was about to publish its story are very disturbing. For example, according to The Guardian, after learning about the upcoming story Whisper rewrote its terms of service to "explicitly permit the company to establish the broad location of people who have disabled the app’s geo-location feature." In addition, The Guardian reported that Whisper recently changed its privacy policy from it “is committed to protecting your privacy and the security of personally identifying information” to “our goal is to provide you with a tool that allows you to express yourself while remaining anonymous to the community."
Whisper's terms of service and privacy policy govern its relationship with its users. Whisper's response to The Guardian's allegations do not appear to address why its terms of service and privacy policy were changed. Are these changes an acknowledgement that Whisper has been making unfair and deceptive privacy promises about its app?
Copyright 2014 by Shear Law, LLC. All rights reserved.
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