Florida Prosecutor's Reputation Destroyed Over Facebook Comments

Be careful what you say online because it may come back to hurt you.  Unfortunately, too many people don't heed this advice and this time an attorney has forever harmed his reputation because of unprovoked online posts. Florida Assistant State Attorney Kenneth Lewis was suspended for posting online inflammatory messages about the city of Orlando in wake of the tragic nightclub terrorist attack.  His comments violated his employer's social media policy.

It appears that Mr. Lewis has been investigated for previously posting inappropriate online comments.  Just because you have a right to say something doesn't mean its a good idea to do so.  For years, people have felt less inhibited to attach their names to very incendiary online comments because its so easy to do so from the comfort of your own home.  Unfortunately, many people don't realize that comments meant for just friends or family may be seen around the world in just seconds.

Will Mr. Lewis be passed over for promotion because of this issue?  Will Mr. Lewis' online comments encourage his employer to terminate his employment for this or other behavior?  Will his online activities hurt his ability to transition to another employer?

In the Digital Age, it is imperative to understand how the Internet may help or harm your personal and professional reputation.

Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved.

Doctors Yelp Review Responses May Create Millions In Legal Liability

The Washington Post has an interesting story about how some doctors and health care professionals are responding to negative reviews online.  In essence, it sounds as though some members of the health care profession are violating the federal Health Insurance Portability and Accountability Act (HIPAA) by providing very personal details about a patient's care in response to negative online reviews.  

While some people believe that HIPAA provides strong privacy protections to patients there is no private right of action allowed for an individual to sue  for a violation of the act.  One option is to file a HIPAA privacy complaint with the federal Office of Civil Rights (OCR).  Another option is review your state's medical privacy laws to determine if there is a state based privacy claim.  

In 2014, the Indiana Court of Appeals unanimously upheld a $1.44 million dollar claim against Walgreens for a state based medical information privacy action.  In that case, a Walgreens employee violated a patient's privacy by viewing a customer's prescription records and disclosing that information to a third-party.       

The bottom line is that doctor practices, hospitals, and other health care providers should have the proper policies in place and be trained about legal social media issues that may affect their practices. Just because a social media "expert"/"guru"/"ninja", etc.... may advocate responding to a negative online review you may want to get a second opinion from a lawyer who understands the legal, privacy, and reputation ramifications of doing so.  

Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved.

Teenager Sues Virginia Prosecutor Over Erect Penis Photo Demand

According to The Washington Post, a teenager who was caught up in a sexting investigation has sued a Virginia prosecutor for civil rights violations.  While the police were investigating sexting between two teenagers in 2014 they obtained a warrant to force the teenager to enable law enforcement to take photos of his genitalia. Fortunately, the public was notified of this ridiculous situation and the teenager was not required to take a photo of his erect penis for evidence.

This request created a major public uproar.  It sounded like those requesting the photos had been fans of the the 1980's movie Porky's when physical education teacher Ms. Balbricker asked the high school principal if he would sanction a penis (tallywacker) lineup of several students so she could identify which student stuck his penis through a peep hole in the girl's bathroom. Ms. Balbricker claimed that she could identify the offending student's penis because it contained a distinctive mole. In the movie, the request for the penis line up was denied. 

The detective who handled the case killed himself last year after being accused of molesting two young boys so this raises further doubts regarding the motive for photos of the teenager's erect penis.I initially wrote about the case in 2014 and stated, "My hope is that prosecutors and judges across the country realize that this is the wrong way to deal with sexting by teenagers."

The bottom line is that teenagers should be provided more education about these issues instead of outright punishment for these types of situations.

Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved.

NFL Draft Social Media Lessons For NCAA Schools & Student-Athletes

The 2016 NFL draft demonstrated why people need to become more educated about social media, digital privacy, reputation, and the law. Since starting this blog in 2009, I have been warning the public about the dangers associated with digital technologies and social media and how to protect yourself from becoming a star in a viral social media pr crisis.

Several minutes before the NFL draft started on Thursday, a video was posted on NFL prospect Laremy Tunsil's personal Twitter account that allegedly showed him wearing a gas mask and taking bong hits.  

While Mr. Tunsil is not the first college student who has admitted to trying drugs or drinking too much (i.e. President's Clinton, Bush, and Obama), he is the first to have had this information go viral right before he was expected to be drafted and earn millions of dollars.

This video allegedly cost Tunsil approximately $13 million dollars in salary and his agent $390,000 in fees.  It may have even destroyed Tunsil's marketability as a celebrity spokes person which could have earned him millions more and his agents hundreds of thousands of dollars in commission. This matter will go down as one of the most expensive digital mistake's on record.

This wasn't the only digital evidence of Mr. Tunsil's activities in college.  A short time after the bong video was posted, a text message exchange appeared on Mr. Tunsil's personal Instagram account that appears to demonstrate that his college program (University of Mississippi) was paying for some of his personal expenses which is an NCAA violation.

    

This post may lead to an NCAA investigation which could cost the University of Mississippi tens of millions of dollars.  Ole Miss may be forced to forfeit games Tunsil appeared in, lose scholarships, become ineligible for future bowl games, etc... Additionally, sponsorship revenue may decrease, and the university may be forced to spend millions in legal fees and compliance costs to investigate and defend their actions. Coaches and athletic administrators may also be fired because of this evidence.

Tunsil was obviously targeted because the hacker(s) acquired the digital evidence and struck at the most opportune time to inflict serious damage to his reputation.While it appears that multiple state and federal laws were violated, until the matter is fully investigated it is too early to determine what criminal and/or civil action may be taken.  

These types of issues will only increase in the future.  As I told The New York Times, "Its very challenging with these computer crimes because people can hide their tracks... Even if you find the person who hacked, can you even collect on the judgment?"

The bottom line is that education is the best way to protect against becoming a victim. When a crisis like this occurs, it is imperative to understand how to properly respond to ensure that your organization has its legal and pr ducks in a row to limit any damage to your reputation.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Erin Andrews Settles Multi-Million Dollar Internet Privacy Lawsuit

Earlier this year, Erin Andrews won a $55 million dollar privacy lawsuit against those whose actions and/or negligence resulted in a naked video of her being uploaded onto the Internet for eternity.  During her trial, the jury found that the hotel where she was video taped naked to be liable for approximately $26 million of the $55 million dollars in damages awarded.

According to The Tennessean, the hotel that was held to be negligent in protecting Ms. Andrew's privacy has settled its portion of the lawsuit.  While terms of the settlement are confidential, it wouldn't surprise me if Ms. Andrews settlement was between $15-$20 million dollars.  The settlement was reached before the judge was about to rule on whether the hotel could be on the hook for the entire $55 million dollars.

We may never know the exact settlement amount.  However, the bottom line is that Ms. Andrews will be naked on the Internet forever.  While Ms. Andrews has successfully persevered despite these circumstances, no amount of money will be able to permanently remove her online naked images and make things right.

Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.



    

ESPN Fires Curt Schilling Over Facebook Post

ESPN fired Curt Schilling, a former major league baseball star after he made an offensive Facebook post.  This was not the first time that Schilling's social media behavior had gotten him in trouble; however, this post was the proverbial straw that broke the camel's back.  It showed a photo of a man that appeared to be dressed as a woman and stated, "LET HIM IN" TO THE RESTROOM WITH YOUR DAUGHTER OR ELSE YOUR'RE A NARROW MINDED, JUDGMENTAL, UNLOVING, RACIST BIGOT WHO NEEDS TO DIE!!!

Last year, Schilling was suspended from ESPN for an offensive Tweet that compared some Muslims with Nazis.  In that case, Schilling deleted the post and quickly apologized. However, during this social media crisis instead of apologizing for the post quickly he doubled down and defended it on his blog.  

Schilling has the right to voice his opinions. However, under his agreement with ESPN there is most likely a morals clause and under ESPN's social media policy it most likely enables it to fire him for making those opinions public on social media.  Most jobs in the U.S. are at-will meaning that employees may be fired for any reason or no reason at all that doesn't violate public policy (i.e. discrimination-age, race, gender, religion etc...) 

Schilling's reputation has taken a tremendous hit.  It is highly questionable whether he will be given another opportunity by a large media company to be a sports commentator.  It wasn't just one offensive social media post that did him in.  Schilling's cumulative comments online and offline and how he responded to them made it easy for ESPN to fire him.  

Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Thailand Wants Foreigners To Register Their Social Media Accounts

According to The Washington Post, Thailand wants foreigners who move to the country to register their social media account information with the government.  A Thailand government spokesman has stated that the request is not mandatory; however, the form that ex-patriots must complete does not indicate that this information is optional.

This new request is not surprising since governments around the world are increasingly monitoring and tracking the digital habits of those within their boarders and around the world. The question is which country will follow in Thailand's foot steps?

 Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Hulk Hogan Awarded $115 Million In Gawker Naked Video Lawsuit

Privacy still matters in the Digital Age.  A Florida state jury awarded former professional wrestler Hulk Hogan $115 million dollars in a lawsuit against the online publication Gawker for publishing a video of him taken without his consent of him having sex with his former best friend's wife.

$55 million dollars of the jury's award was for economic harm and $60 million dollars was for emotional distress.  Punitive damages may also be awarded next week so its possible the award may substantially increase.

The recent Erin Andrews $55 million dollar Internet naked video award set the bar for privacy violations in the Digital Age and the Hogan case appears to have taken it several steps further. While both of these cases may be appealed and its doubtful that either will ever receive close to the figures that these juries have awarded, these awards demonstrate that the public is ready to punish those who destroy the personal privacy of others on the Internet.    

Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The Internet Ruined My Life After Show

The Syfy Chanel is hosting a new program called, "The Internet Ruined My Life" on Wednesday evenings at 10pm est.  The show profiles stories of those whose lives have been uprooted because of an inappropriate Tweet, or digital activism, or other Internet related activity.

The after show which discusses the stories profiled each episode is hosted by Diana Garber of Cyberwise and Sue Scheff, who is an Author and Internet Safety Expert.  I am honored to be a guest on the after show tomorrow.  I will also be appearing with Dr. Pamela Rutledge who is a Media Psychology Expert.

The after show will occur online at 12 est on March 17, 2016.  The issues that will be discussed demonstrate the importance of understanding the legal, psychological, and safety issues of your digital behavior. The link to the after show is: https://blab.im/cyberwise-aftershow-the-internet-ruined-my-life

Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Erin Andrews Naked Video Lawsuit and Privacy in The Digital Age

The Erin Andrews naked video stalking matter is one of the most troubling examples of what can happen when your privacy is destroyed when illegally created video is uploaded onto the Internet. Ms. Andrews is a sports reporter who has worked at ESPN and is now at Fox Sports. In 2008, a stalker by the name of Michael David Barrett started to follow her and thought it would be a profitable economic venture to video record her nude and then sell the images to the highest bidder.

Mr. Barrett followed Ms. Andrews to the Nashville Marriott at Vanderbilt University. While at the hotel, he figured out how to obtain Ms. Andrews' room number by using a house phone and asking to be connected to her room. When being transferred, Ms. Andrews' room number appeared on the phone's display.  With this information, Mr. Barrett asked the hotel if he could stay in a room next to Ms. Andrews and he was granted his wish.

Once Mr. Barrett obtained Ms. Andrews room number, he utilized a hack saw to remove her door's peephole.  When he heard that she was showering he uncovered her door's doctored peephole and put his cell phone to the opening and recorded approximately four and a half minutes of her naked. After he was finished, he tried to sell the video. There were no interested bidders so he uploaded it online anyway.

Mr. Barrett was subsequently prosecuted for his crimes and Ms. Andrews filed a civil lawsuit against Mr. Barrett and the hotel operator/owner where the incident occurred.  According to testimony during Ms. Andrews' civil trial against those she is trying to hold legally responsible for this incident approximately 17 million people have so far viewed the video of her naked.  

Through no fault of her own, she has been seen naked all over the world for more than 7 years.  No technology will be able to permanently scrub this the content from the Internet.  While Ms. Andrews has prospered in her career despite this very disgusting incident, I believe she has lost out on tens of millions of dollars in potential income and business opportunities.  Because of this situation, she has to spend a tremendous amount of time and money on security and privacy protocols along with mental health assistance. The emotional toll has been devastating and will continue for years to come.

There is recent precedent for a multi-million dollar damage award for emotional distress for privacy damages. Last year, rapper 50 Cent was ordered to pay $5 million dollars in damages for leaking a naked video of a woman who had fathered a child with a rival of his. Therefore, juries have begun to understand that damages should be awarded for destroying one's personal privacy.

Interestingly, NBC News has reported that a representative of one of the defendants/a witness who has testified was accused of watching Ms. Andrews' naked video in a restaurant yesterday. This appears to demonstrate that one of the defendants do not take this matter seriously. After watching some of the testimony and reading about the activities of those acting on behalf of the defense, I hope Ms. Andrews wins her case and is awarded millions of dollars.

The hotel owed a duty of care to protect Ms. Andrews' privacy. It failed. But for the hotel's negligence in deploying technology that would enable others to obtain the room numbers of their guests, this incident would not have occurred. The hotel's choice of technology put the personal privacy and safety of Ms. Andrews and other guests at risk. Ms. Andrews will always be naked on the Internet and has incurred significant damages that I believe have been proven at trial.  Therefore, it wouldn't surprise me if she is awarded millions of dollars in damages.

Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Judicial Redress Act Signed

In a positive development, President Obama has signed the Judicial Redress Act yesterday.  The new law will enable citizens of some of our allies to sue the U.S. government for violating their personal privacy rights.

The bill passed with bipartisan support in both the U.S. House and Senate and signed by the President soon after he received the bill.  The enactment of this piece of legislation was needed in order for the new U.S.-EU Privacy Shield Agreement to move forward in Europe.  

The bottom line is that the enactment of the Judicial Redress Act extends some of the privacy rights our citizens have to the citizens of our allies and demonstrates that our country is serious about protecting the personal privacy of their citizens.  This signals that the U.S. may be moving towards ensuring stronger digital privacy rights when it comes to matters that may affect international commerce.  

Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

NFL Star Files Twitter Lawsuit Against ESPN

According to The New York Post, New York Giants star Jason Pierre-Paul has filed a lawsuit against ESPN and one its reporters, Adam Schefter, for Tweeting a photo of his medical records.  Last July 4th, Pierre-Paul was involved in a fireworks accident that severely damaged one of his hands and the incident created a feeding frenzy among the media to determine the extent of Pierre-Paul's injuries.  

Under the Health Insurance Portability and Accountability Act (HIPAA), the hospital and its employees owed a duty of medical privacy to Pierre-Paul.  The media is not a covered entity under HIPAA so it doesn't apply to ESPN or Schefter.  It has been reported that the hospital that treated Pierre-Paul has already settled with him most likely because it had the most to lose if the matter went to trial since it was a covered entity under HIPAA.

While HIPAA doesn't cover ESPN/Adam Schefter's actions, Pierre-Paul may have an actionable claim under Florida state law or common law. If ESPN/Adam Schefter contacted me before posting Pierre-Paul's medical records on Twitter, I would have advised against Tweeting out the photo or posting it online on another platform due to potential legal liability. While its too soon to speculate on how Florida state law or common law may affect the outcome of this case, it should make people think long and hard before they post the medical records of others online without expressed written consent.    

I have previously written about ESPN's corporate social media policy that covers its reporters here and here.  The bottom line is that professional sports teams, athletes, and those that work in the sports field need to become better educated about the legal implications of their actions whenever they utilize digital platforms. One wrong post or action/inaction that leads to a digital post may create millions of dollars in legal liability.  

Copyright 2016 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Apple vs. the FBI: We Can Have Both Privacy And Security

Can we have both privacy and security?  That is a question that has been popular since 9/11/2001.  I believe we can have both.  As someone who personally witnessed the terrorist attacks on The World Trade Center from a couple of blocks away (and became homeless because of them and eventually moved), I am fully well versed on these issues from the security side.  As an attorney who focuses on technology and privacy issues and who has advocated for stronger personal privacy laws on the state and federal level, I also understand the inherent privacy issues.

To recap the latest privacy vs. security debate: the U.S. Justice Department is demanding that Apple help unlock an iPhone that was utilized by the San Bernardino terrorists who killed 14 people and injured 22 in 2015.  Without getting too technical, the FBI has requested (there has been multiple requests/back and forth between the parties) that Apple create software or disable some security protections on an iPhone that would weaken its encryption to allow the FBI to ensure that it may access the contents on the device.  According to The New York Times, the FBI has also requested that Apple assist it with unlocking at least 9 other iPhones.

Weakening encryption or creating back doors into our technology may sound like a good idea for this one case; however, there are and will be other cases where similar requests will be made to access information stored on electronic devices.  If the FBI is provided a back door for this one case, security services from others countries will also demand one for their cases (there could be demands for access to phones belonging to government political opponents or to whistle blowers) as well. In addition, hackers may also utilize back doors which would harm the privacy and personal security of all of us.

I am in favor of law enforcement being able to access digital content when a valid warrant has been obtained.  However, the legal process needs to be followed before content requested is turned over. In general, a major problem with our current legal process is that our digital laws are outdated. For example, the 1986 Electronic Communications Privacy Act which governs email access was created before we had smart phones and the Internet as we know it.  The judiciary is stuck trying to interpret laws that are woefully out of date.

Congress must step up to fix this process.  Bills such as the Email Privacy Act, and the Law Enforcement Access To Data Stored Abroad Act-LEADS need to be enacted because these bills demonstrate that government is willing to update our laws to better reflect how we utilize technology. Absent a legislative fix, private industry has a challenge when law enforcement makes certain demands which are more than just data requests. Should they comply absent trying to block these demands through the courts or should they fight law enforcement demands via a flawed legal process?

This case and others like it demonstrate the need for more dialogue on these issues and the enactment of legislation that provides clearer guidance on how to handle these issues. Technology is moving too fast to leave it solely up to the judiciary to try to interpret how laws enacted decades ago for a different time should apply in the Digital Age.  Our personal privacy and national security demand that Congress and the White House work on a long term solution to these important privacy and security issues.

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.  

Kurt Rambis, Twitter, Sports, and Social Media Reputation

The Kurt Rambis Twitter Fail has been blown way out of proportion by the media. Coach Rambis allegedly "liked" a female masturbation photo.  Whether he intentionally "liked" it or it was "liked" by accident is up for debate.  Unfortunately, in the Digital Age any non-puritanical digital activity may become a news story for those who hold high profile positions in the world of sports, entertainment, government, politics, business, etc....

When using a digital device, it is easy to accidentally "like" a Tweet or indicate a preference for a particular post when scrolling up or down on a smart phone.  I have accidentally "liked" Tweets in the past and didn't realize it until reviewing my digital activity at a later date. It is entirely possible that Coach Rambis' Twitter account was hacked. Did the hackers also make Coach Rambis follow @GreatAssDaily?   

I have had multiple clients who have been targets of hacking and other nefarious digital attacks. If Mr. Rambis' account was hacked as the Knicks claim he/the team should file a complaint with the proper state and/or federal authorities. 

Whomever is advising the Knicks and Coach Rambis regarding this matter failed miserably. There are significant legal, business, and personal and corporate reputation issues involved. The bottom line is that many PR firms and social media consultants don't understand how intertwined these issues have become in the Digital Age and it shows when an incident like this occurs.

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.

US-EU Safe Harbor Deadline Passes Without A New Data Transfer Deal

According to The New York Times, United States (US) and European Union (EU) officials were unable to reach an agreement on an updated International Safe Harbor agreement before the January 31st deadline. The agreement covered how digital data (i.e. social media content, financial data, etc..) could be transferred between the continents.

The Safe Harbor Agreement that was implemented in 2000 between the US and EU contained principles that allowed companies (i.e. tech companies and other multi-national companies) to comply with EU data protection laws when moving data from Europe to the United States.  US companies that process and/or store individuals' data may self certify that they adhere to 7 principles that comply with the EU's data protection laws.

The 7 principles include:  notice, choice, onward transfer, security, data integrity, access, and enforcement.  The initial Safe Harbor agreement was meant to be an interim agreement; however, it lasted approximately 15 years.  A couple of years ago, EU and US regulators began negotiating an updated agreement to take into account how technology has changed over the years. Last October, before a new agreement was finalized, the current one was invalidated by the European Court of Justice via a compliant from Austrian privacy advocate Max Schrems.  Mr. Schrems gained publicity several years ago for his privacy advocacy that was highlighted in the documentary Terms and Conditions May Apply when he demonstrated how much data Facebook was collecting about each of its EU users.  

Now that the deadline has passed, what comes next?  According to The New York Times, the sides still have a lot of details to work out. Therefore, until a formal announcement is made it is premature to speculate on the next step.  As I told LAW360 the other day, businesses need certainty regarding transatlantic data transfers and if an agreement is not forthcoming companies will need a Plan B. 

If consumer groups file complaints as The New York Times indicated may occur, these issues may need to be adjudicated via the courts. At this point, uncertainty is the status quo and this may create unintended service disruptions for companies that transfer digital data between the continents. My hope is that an agreement is reached sooner rather than later that is flexible enough to account for future technology changes.  

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.