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Socially Aware Blog

The Law and Business of Social Media

Next Generation State Privacy Law: Regulating the Commercial Use of Drones

Posted in Privacy

When most Americans think of drones, they think of unmanned, often weaponized aircraft that are used by governments in areas of conflict for intelligence or combat purposes.  However, the proverbial sky is the limit on the potential commercial use of drones.  For example, in a December 2013 60 Minutes interview, Jeff Bezos, the founder of Amazon.com, described his company’s efforts to develop GPS-programmed, autonomous drones (or in his words, “octocopters”) to serve as “delivery vehicles” to provide half-hour delivery of your future Amazon order.  Although there will be hurdles to the widespread commercial adoption of drones as the Federal Aviation Administration works out the regulatory issues surrounding the licensing and use of drones in our airspace, our not-too-distant future could involve a world in which drones are literally buzzing above our heads.

Drones are, among other things, unmanned, light, easy to deploy and relatively cheap.  As a result, companies could use drones for numerous purposes, including scientific research and exploration, monitoring livestock or gas pipelines, remote troubleshooting of technology, finding lost shipments or even as a substitute for the Super Bowl blimp.  Because of advances in camera, video and audio technology (and the decreasing cost of that technology), however, drones could also be used to collect and communicate massive amounts of information about individuals and their everyday lives.  Imagine a company taking its drones out for a spin on a Saturday morning in your town to conduct market research, observing how the average person mows the lawn, when the average person goes to grab coffee or how many bags of groceries the average person leaves with from the supermarket.  Or, imagine a company flying a drone around its factory or retail location to monitor when its employees go on break or what end-caps its customers gravitate to or avoid.  As is true with many new technologies, drones raise complex and often troubling privacy issues (remember your first cell phone…it didn’t have a camera or location services, right?). Continue Reading

Hot Off the Press: The April Issue of Our Socially Aware Newsletter Is Now Available

Posted in Copyright, Discovery, DMCA, E-Discovery, Employment Law, First Amendment, Litigation, Privacy, Wearable Computers

The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we summarize the current status of various state laws restricting employer access to the personal social media accounts of applicants and employees; we explore how driving while wearing Google Glass is butting up against the law, and examine recent attempts to legislate the use of Glass on the road; we report on various approaches U.S. courts are taking to address social media-related discovery challenges and to avoid social media fishing expeditions; we take a look at the legal landscape of so-called “revenge porn” and the laws victims are leveraging (or may be able to leverage in the future) in order to fight back; we discuss how UK and European copyright law is being applied to common Internet social and business practices, including the most basic of online activities—hyperlinking; and we highlight a puzzling recent Ninth Circuit decision that has operators of online video services and copyright experts alike scratching their respective heads.

All this—plus a collection of thought-provoking statistics about social media marketing…

Jerked Around? Did the FTC’s “Jerk.com” Complaint Just Turn API Terms Into Federal Law?

Posted in Litigation, Privacy

The Federal Trade Commission’s (FTC) announcement earlier this week that it had filed a complaint against Jerk, LLC and its websites like “jerk.com” (“Jerk”) looks at first glance like a run-of-the-mill FTC Section 5 enforcement action involving allegedly deceptive practices online. But hidden in the facts of Jerk’s alleged misbehavior is a potentially significant expansion of the FTC’s use of its deception authority.

According to the FTC’s complaint, Jerk allegedly led consumers to believe that the profiles on its websites were created by other users of the website. The company also allegedly sold “memberships” for $30 a month that supposedly included features that would enable consumers to alter or delete their profiles, or to dispute false information in the profiles. Jerk also charged consumers a $25 fee to email Jerk’s customer service department, according to the FTC’s complaint.

The FTC alleges that Jerk created between 73.4 million and 81.6 million unique consumer profiles primarily using information such as names and photos pulled from Facebook through application programming interfaces, or APIs. The complaint states that “[d]evelopers that use the Facebook platform must agree to Facebook’s policies,” such as obtaining users’ explicit consent to share certain Facebook data and deleting information obtained from Facebook upon a consumer’s request. Continue Reading

New Regulatory Guidance on Use of Social Media by Investment Advisers

Posted in Investment Management Law

Acknowledging the growing demand by consumers for information through social media, the Division of Investment Management set some ground rules on how investment advisers can use social media and publish advertisements featuring public commentary about them from social media sites.

Under the new rules, investment advisers may refer to commentary published in social media without violating the rule prohibiting publication of client “testimonials” if the content is independently produced and the adviser has no “material connection” with the independent social media site. While not a bright line in the sand, the distinction goes a long way to clear up this murky area of the law. Continue Reading

The Internet of Things Part 2: The Old Problem Squared

Posted in Ethics, FTC, Internet of Things, IP, Privacy

Cisco estimates that 25 billion devices will be connected in the Internet of Things (IoT) by 2015, and 50 billion by 2020. Analyst firm IDC makes an even bolder prediction: 212 billion connected devices by 2020. This massive increase in connectedness will drive a wave of innovation and could generate up to $19 trillion in savings over the next decade, according to Cisco’s estimates. 

In the first part of this two-part post, we examined the development of, and practical challenges facing businesses implementing, IoT solutions. In this second part, we will look at the likely legal and regulatory issues associated with the IoT, especially from an EU and U.S. perspective.

The Issues

In the new world of the IoT, the problem is, in many cases, the old problem squared. Contractually, the explosion of devices and platforms will create the need for a web of inter-dependent providers and alliances, with consequent issues such as liability, intellectual property ownership and compliance with consumer protection regulations. Continue Reading

The Internet of Things Part 1: Brave New World

Posted in FTC, Internet of Things, Privacy

The Internet of Things (IoT) is the network of everyday physical objects that surround us and are increasingly being embedded with technology to enable those objects to collect and transmit data about their use and surroundings. TVs connected to the Internet and refrigerators connected to online delivery services are just the start of it. In the new world of the IoT, the possibilities are enormous, and the technology industry has so far only scratched the surface of what “machine-to-machine” (M2M) interconnectivity could achieve.

But the ingenuity and innovation which companies will apply to turn the IoT into practical reality is constrained by law and regulation. Existing issues may take on new dimensions and, as technologies combine, so will the legal consequences of those technologies.

In this post, we look at the prospects for the IoT. In a second post to be published shortly, we will examine the likely legal and regulatory factors that will affect the development and growth of IoT technology and the markets that such technology will create. Continue Reading

The Umpire Strikes Back: European Court Rules That ISPs Can Be Forced to Block Pirate Websites

Posted in Copyright, IP, Litigation

On March 27, 2014, the highest court in the European Union—the Court of Justice for the European Union (CJEU)—decided that copyright owners have the right to seek injunctions against Internet service providers (ISPs) requiring the ISPs to block access to pirate websites illegally streaming or making copyright material available for download.

The case arose out of a dispute in Austria between two movie companies and an Austrian ISP, UPC Telekabel Wien GmbH. The movie companies were concerned about access to an illegal streaming site, Kino.to, which was making copies of films such as Vicky the Viking and The White Ribbon available to its subscribers. The Austrian Supreme Court had asked the CJEU whether the movie companies were entitled under European law to seek an injunction against the ISP, not just against the illegal streaming site.

EU law allows holders of intellectual property rights to seek an injunction against any “intermediary” that provides services to third parties and, in doing so, helps them to infringe copyrighted works. The Austrian Supreme Court asked the CJEU for a ruling on whether ISPs in this position were considered to be an intermediary for the purposes of the European legislation. Continue Reading

U.S. Courts’ Evolving Approaches to Social Media E-Discovery

Posted in Discovery, E-Discovery, Litigation

Courts across the United States have now made clear that discovery of social media is fair game. At the same time, courts have consistently found that litigants will not be permitted to engage in social media fishing expeditions; rather, litigants will be required to show that the sites likely contain relevant material. We explore below various approaches taken by courts to address social media-related discovery challenges.

Some courts have simply quashed a litigant’s request for social media-related discovery for failure to show relevance to the dispute. In Kennedy v. Contract Pharmacal Corp., the plaintiff sought a variety of gender discrimination-based damages. The defendants sought to compel broad discovery from the plaintiff’s social media sites. For instance, the defendants broadly requested “[a]ll documents concerning, relating to, reflecting and/or regarding Plaintiff’s utilization of social networking sites.” Denying a motion to compel discovery, the U.S. District Court for the Eastern District of New York held that “[t]here is no specificity to the requests and no effort to limit these requests to any relevant acts alleged in this action.” Continue Reading

Copyright: Europe Explores its Boundaries: Part 1: Link Hubs

Posted in Copyright

INTRODUCTION

This year, as the world celebrates the 25th anniversary of the World Wide Web, the Web’s founder, Tim Berners-Lee, has called for a fundamental reappraisal of copyright law.  By coincidence, this year we also anticipate a rash of UK and European legislative developments and court decisions centring on copyright and its application to the Web.

In our “Copyright: Europe Explores its Boundaries” series of posts—aimed at copyright owners, technology developers and digital philosophers alike—we will examine how UK and European copyright is coping with the Web and the novel social and business practices that it enables. Continue Reading

Google Ordered to Remove All Copies of Anti-Islamic Film From YouTube After Actress With Bit Part Threatened by Outraged Muslims; Decision Puzzles Copyright Attorneys

Posted in Copyright, Litigation

An aspiring actress moves to California and finds her life threatened. While standard fare for pulp fiction, the case of Garcia v. Google involves a twist on this well-worn plot line that not even the most imaginative Hollywood scriptwriter could invent.

Cindy Lee Garcia answered a casting call for a low-budget amateur movie with the working title Desert Warrior. The film’s writer and producer told her that it would be a “historical Arabian Desert adventure film.” Ms. Garcia received $500 for her performance in the film. It turns out the actress was misled by the producer, Mark Basseley Youssef (aka Nakoula Basseley Nakoula, aka Sam Bacile), a Coptic Christian from Egypt, who was reportedly working in conjunction with an American non-profit, Media for Christ. The filmmakers had no intention of making an adventure film; rather, the end product – titled Innocence of Muslims – is an anti-Islamic account of the Prophet Mohammed that many Muslims find highly offensive and blasphemous.

In July 2012, Mr. Youssef posted a 14-minute trailer of the film to YouTube, which is owned and operated by Google. Ms. Garcia appears for about five seconds in the trailer. The film overdubs her voice with lines she never actually spoke. In September 2012, an Egyptian cleric issued a fatwa against all involved in the film, calling on Muslims to “kill the director, the producer, and the actors and everyone who helped and promoted the film.” Ms. Garcia claims that she began to receive death threats and was forced to take precautionary measures at great expense to protect herself from retribution.

Sending takedown notices under the Digital Millennium Copyright Act, Ms. Garcia demanded that Google remove all copies of the trailer from YouTube. Google declined to do so. In September 2012, Ms. Garcia sued Google, later also naming YouTube, asserting claims for copyright infringement. In October 2012, Ms. Garcia moved for a preliminary injunction, seeking to have Google take down all copies of the movie trailer from YouTube. Continue Reading