In the most recent edition of his CyberSide Chat series, Socially Aware contributor Andy Serwin discusses emerging cybersecurity issues including:

  • The need to strike a balance between the efficiencies of the Internet of Things and the increased cyberattack vulnerability that usually goes along with using extra devices;
  • The pre- and post-cyber-breach steps a company can take to mitigate the damage that could be caused by a theft of the company’s data or an attempt to shut down its systems;
  • The factors companies should consider when determining how much of their resources to dedicate to preventing a cyberattack.

Check out Andy’s insightful presentation:

In the wake of a successful social media conference in San Francisco, Socially Aware co-editors John Delaney and Aaron Rubin are revved up and ready to chair (John) and present (Aaron and John) at another Practicing Law Institute (PLI) 2017 Social Media conference! This one will be held in New York City on Wednesday, February 15, and will be webcasted.

Attendees and webcast listeners will learn how to leverage social-media-marketing opportunities while minimizing their companies’ risks from entirely new panels of industry experts, lawyers and regulators.

Topics to be addressed will include:

  • Key developments shaping social media law
  • Emerging best practices for staying out of trouble
  • Risk mitigation strategies regarding user-generated content and online marketing
  • Legal considerations regarding use of personal devices and other workplace issues

Other special features of the conference include:

  • Regulators panel: guidance on enforcement priorities for social media and mobile apps
  • In-house panel: practical tips for handling real-world issues
  • Potential ethical issues relating to the use of social media by attorneys

The conference will end with a networking cocktail reception—a great way to meet others who share your interest in social media, mobile apps and other emerging technologies.

Don’t miss this opportunity to get up-to-date information on the fast-breaking developments in the critical area of social media and mobile apps so that you can most effectively meet the needs of your clients.

For more information or to register, please visit PLI’s website here.  We hope to see you there!

SociallyAware_Vol8Issue1_Thumb2The latest issue of our Socially Aware newsletter is now available here.

In this edition,we examine a spate of court decisions that appear to rein in the historically broad scope of the Communications Decency Act’s Section 230 safe harbor for website operators; we outline ten steps companies can take to be better prepared for a security breach incident; we describe the implications of the Second Circuit’s recent opinion in Microsoft v. United States regarding the U.S. government’s efforts to require Microsoft to produce email messages stored outside the country; we explore the EU’s draft regulation prohibiting geo-blocking; and we take a look at UK Consumer Protection regulators’ efforts to combat undisclosed endorsements on social media.

All this—plus an infographic highlighting the most popular social-media-post topics in 2016.

Read our newsletter.

Social media is transforming the way companies interact with consumers. Learn how to make the most of these online opportunities while minimizing your company’s risk at Practicing Law Institute’s (PLI) 2017 Social Media conference, to be held in San Francisco and webcasted on Thursday, February 2nd.  The conference will be chaired by Socially Aware co-editor John Delaney, and our other co-editor, Aaron Rubin, will also be presenting at the event.

Topics to be addressed will include:

  • Key developments shaping social media law
  • Emerging best practices for staying out of trouble
  • Risk mitigation strategies regarding user-generated content and online marketing
  • Legal considerations regarding use of personal devices and other workplace issues

Other special features of the conference include:

  • Regulators panel: guidance on enforcement priorities for social media and mobile apps
  • In-house panel: practical tips for handling real-world issues
  • Potential ethical issues relating to the use of social media by attorneys

Don’t miss this opportunity to get up-to-date information on the fast-breaking developments in the critical area of social media and mobile apps so that you can most effectively meet the needs of your clients.

For more information or to register, please visit PLI’s website here.  We hope to see you there!

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The beginning of a new year is a time for resolutions and predictions. We won’t bother Socially Aware readers with our resolutions for 2017, but we thought that we would share some predictions for the new year from our editors and contributors. As our predictions below indicate, 2017 promises to be an eventful year for social media and other emerging technologies. Here we go:

From John Delaney, Co-Founder and Co-Editor, Socially Aware, and Partner at Morrison & Foerster:

As we enter 2017, one of the greatest question marks for the social media and content marketing industries is what impact will Donald Trump have on the legal landscape. He’s been dubbed the country’s first social media president, and there is no doubt that his use of social media platforms such as Twitter and Facebook played a key role in his upset election victory. At the same time, he’s had an often antagonistic relationship with Silicon Valley, and one can imagine tech giants such as Google and Facebook having a far less prominent voice within the Trump administration than was the case for the Obama administration. And although Trump’s promised focus on reducing business regulations may benefit the U.S. technology companies, his apparent skepticism toward globalism and free trade could prove a challenge to the country’s social media industry, perhaps the most global of all U.S. industries.

My other prediction for the coming year is that we’re going to see a number of disruptive new technologies emerging from the hype phase to having a real impact on businesses and consumers—perhaps more likely with respect to the latter than the former, at least initially. For example, blockchain technology generated a big buzz in 2016, but look for companies to actually begin embracing and implementing this technology in a B2B context in the never-ending drive to reduce transaction fees. By eliminating the need for trusted middlemen, the transitioning of traditional payment and recordation platforms to blockchain-based platforms holds the promise of generating significant cost savings for companies. We’re also going to see the pace of disruption accelerate as each of these new technologies—such as artificial intelligence, big data analytics, cloud computing, blockchain, the Internet of Things and so forth—combine and mutate in expected and unexpected ways.

Continue Reading 2017: Predictions From Socially Aware’s Editors and Contributors

As part of the European Commission’s Digital Single Market initiative, the European Commission has published a draft Regulation aimed at preventing traders from discriminating against customers located in other EU Member States by denying those customers access to e-commerce sites, or by redirecting those customers to websites that offer inferior goods or sales conditions—a practice known as geo-blocking. The proposed new rules will benefit both consumers and businesses that purchase goods or services within the EU (excluding resellers).

The European Commission believes that geo-blocking and discriminatory practices undermine online shopping and cross-border sales within the EU.

The Regulation, which must still undergo review by the European Parliament and the Council of the EU, may change and is expected to be in force in 2017 (except the ban on discriminating against customers of electronically supplied services, which is expected to be effective beginning July 2018). When it is adopted, the Regulation will automatically take effect in all Member States without each Member State having to implement it into national law. Continue Reading European Commission Publishes Draft Regulation Prohibiting Geo-Blocking by Online Traders and Content Publishers

Facebook introduced technology that disables ad blockers used by people who visit the platform via desktop computers, but Adblock Plus has already foiled the platform’s efforts, at least for now.

A look at Twitter’s 10-year failure to stop harassment.

Are mobile apps killing the web?

LinkedIn sues to shut down “scrapers.”

The FTC is planning to police social media influencers’ paid endorsements more strictly; hashtags like #ad may not be sufficient to avoid FTC scrutiny. Officials in the UK are cracking down on paid posts, too.

Dan Rather, Facebook anchorman.

The U.S. Olympic Committee sent letters to non-sponsoring companies warning them against posting about the games on their corporate social media accounts.

How IHOP keeps winning the love & affection of its 3.5 million Facebook fans.

A Canadian woman whose home was designated a Pokémon Go “stop” is suing the app’s creators for trespass and nuisance. We saw that coming.

There’s a website dedicated to helping Snapchat users fool their followers into thinking they’re out on the town.

Facebook has been wooing premium content owners, but TV companies are reportedly resisting.

PETA got a primatologist to submit an amicus curiae brief supporting its suit alleging a monkey who took a selfie is entitled to a copyright for the image.

95486697_thumbnailIn the recently decided People ex rel. Harris v. Delta Air Lines, California’s Court of Appeal unanimously affirmed the dismissal of the State of California’s complaint against Delta Air Lines, Inc., which alleged that the company’s Fly Delta mobile application violated California’s privacy laws. The Court of Appeal held that the lawsuit was expressly preempted by the Airline Deregulation Act of 1978 (ADA). The holding is in line with other cases broadly applying the ADA’s preemption provision and limits the extent to which airlines may be required to comply with state privacy laws.

California’s Lawsuit

The California Attorney General (AG) brought the lawsuit against Delta to enforce California’s Online Privacy Protection Act of 2003 (CalOPPA), In pertinent part, CalOPPA requires an operator of a commercial website or online service to draft and post online a privacy policy informing consumers in California “of the Web site’s or online service’s information practices with regard to the consumers’ personally identifiable information[.]” CalOPPA also places certain other requirements on operators of websites or online services.

The AG argued that Delta violated CalOPPA in connection with the Fly Delta mobile app, which can be downloaded from the Internet and used on smart phones and other mobile devices (and therefore arguably makes Delta “an operator of online services” subject to CalOPPA). Users can do a variety of things on the app, including checking in for flights, viewing reservations for air travel, pricing and buying tickets, paying for and tracking checked baggage, and accessing their frequent flyer accounts. The app also purportedly allows users to send and receive information over the Internet, and collects certain personally identifiable information (PII) about individuals residing in California.

The AG alleged that Delta did not conspicuously post a privacy policy in connection with the app as required by CalOPPA. According to the complaint, app users allegedly were not informed that their PII was collected, how Delta used such information, or with whom that information was shared, disclosed, or sold. The AG first notified Delta that the app did not comply with CalOPPA in an October 2012 letter. Less than two months later, the AG filed its complaint alleging that the app “does not have a privacy policy conspicuously posted, i.e., reasonably accessible to consumers within the [mobile application.]” The AG’s complaint contained a single cause of action under California’s Business and Professions Code section 17200 (the “unfair competition law” or UCL), claiming that Delta’s CalOPPA violations were “unlawful, unfair, or fraudulent business acts and practices” under the UCL.

Delta responded with a demurrer in which it argued that the ADA expressly preempted the AG’s lawsuit. The ADA is a 1978 federal law intended to remove government control over fares, routes, and new carriers entering the market in the commercial aviation field. The ADA contains an express preemption provision  that prohibits the states from enacting or enforcing any law, regulation, or provision “related to a price, route, or service of an air carrier . . . ” The trial court agreed with Delta, sustaining the demurrer without leave to amend and dismissing the complaint with prejudice. The AG appealed.

The Court of Appeal’s Opinion

The Court of Appeal affirmed, holding that the ADA preempted California’s UCL claim against Delta. The court began by reiterating the “‘two cornerstones’ of federal preemption analysis”: First, that congressional intent is the focus of the analysis, and second, that there is a presumption against preemption.

Supreme Court Precedent

Applying those cornerstone principles here, the court was guided by three cases in which the U.S. Supreme Court addressed the reach of the ADA’s preemption provision: Morales v. Trans World Airlines, Inc. (1992), American Airlines, Inc. v. Wolens (1995), and Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014).

In Morales, the Supreme Court held that the ADA preempted Travel Industry Enforcement Guidelines composed by the National Association of Attorneys General (NAAG). The NAAG guidelines purported to govern the content and format of airline fare advertising and were designed to stop allegedly deceptive airline advertisements. The Supreme Court interpreted the “relating to” language in the ADA preemption clause broadly, and held that the ADA preempted the NAAG guidelines because they were “related to” a price, route, or service of an air carrier.

The Court similarly found that the ADA preempted the plaintiffs’ claims in Wolens. In Wolens, the plaintiffs alleged American Airlines’ retroactive modification of its frequent flyer program violated Illinois’ Consumer Fraud and Deceptive Business Practices Act. The Supreme Court held that the claims related to American Airlines’ “‘[prices],’ i.e. American’s charges in the form of mileage credits for free tickets and upgrades, and . . . ‘services,’ i.e. access to flights and class‑of-service upgrades unlimited by retrospectively applied capacity controls and blackout dates.” Because they related to prices and services, the claims were preempted by the ADA.

In Ginsberg, the Supreme Court reaffirmed its broad interpretation of the ADA’s preemption provision. The Court concluded that the ADA preempted the plaintiffs’ claims for breach of the implied covenant of good faith and fair dealing stemming from allegations that the airline terminated their memberships to its frequent flyer program. The Court found that airline’s frequent flyer program was “related to” the airline’s prices and services, and thus that the claims were preempted by the ADA.

ADA Preemption, CalOPPA, and the Fly Delta App

Turning to California’s claim here, the court began by addressing a few issues that had been resolved by Morales and Wolens.

First, the court noted that, in assessing whether the ADA preempts the AG’s UCL action, the court would examine the underlying state law predicate—i.e., CalOPPA.

Second, the court explained that, in analyzing the preemption issue, it was not required to apply the presumption against preemption because the field governed by the ADA—air transportation—has long been regulated at the federal level.

Third, the court rejected the AG’s argument that the complaint did not “relate to” Delta’s service. The app was designed to facilitate access to the airline’s services, and the AG was trying to compel Delta to maintain the app in compliance with CalOPPA. Thus, the lawsuit “related to” Delta’s services. Notably, the court did not decide whether the app itself was a “service” within the meaning of the ADA.

The court then concluded that the ADA preempts California’s UCL/CalOPPA claim as applied to Fly Delta. The court explained that CalOPPA is not a mere “disclosure regimen” within which operators of online services may act with broad discretion. Rather, CalOPPA is similar to the consumer protection legislation at issue in Morales and Wolens, and has the potential to intrusively regulate airlines.

Moreover, as in Morales, the obligations imposed by CalOPPA would significantly affect the airline’s ability to market its product through the app, and would therefore have a meaningful impact on the fares Delta charges. As the court explained, quoting Morales: “If each AG were to require Delta to comply with its own version of CalOPPA, it would force Delta to design different mobile applications to meet the requirements of each state. And, indeed, enforcement of the CalOPPA’s privacy policy requirements might well make it impossible for an airline to use a mobile application as a marketing mechanism at all.”

Finally, the court rejected the AG’s argument that CalOPPA would have only “a peripheral effect on ticket prices, routes, or airline services.” CalOPPA would instead “require Delta to meet state standards regarding privacy policy requirements in place of the market forces currently dictating Delta’s selection and design of” Fly Delta.

Because the ADA preempted California’s UCL claim for violation of CalOPPA, the court upheld the dismissal of the complaint. And it did so without leave to amend, finding that there was no reasonable possibility that the AG could amend to avoid ADA preemption.

What This Means

Delta reinforces the broad scope of the ADA’s preemption provision. As the case makes clear, airlines have a strong argument that state laws like CalOPPA, which apply across industries and seem to have only a remote effect on the airline’s prices, routes, or services, simply cannot be applied to them. But this does not mean that the airlines may operate unchecked in areas governed by CalOPPA and other preempted laws. As the Delta court noted, quoting Wolens, Morales, and Ginsberg: “[T]he DOT retains authority to investigate unfair and deceptive practices and unfair methods of competition by airlines, and may order an airline to cease and desist from such practices or methods of competition.” The court further stated that DOT appears to have “taken action” related to the collection of PII by air carriers, and privacy policies for the sharing and storage of that PII. To date, however, the DOT has issued no regulations governing the form and placement of privacy policies related to an airline’s mobile app. And until the DOT does, state privacy laws cannot fill the gap.

 

*      *      *

For more information regarding this subject, please see our November 2012 post California A.G. Makes Good on Promise to Pursue Apps That Don’t Comply With the State’s Privacy Policy Law.

 

 

Social media has upended a number of industries. Is Wall Street next?

Facebook is getting into the video game live-streaming business.

Steven Avery’s defense attorney is keeping her 163,000 Twitter followers abreast of her ongoing defense work on behalf of the “Making a Murderer” documentary subject, and some lawyers think it’s a bad idea.

Five quick and easy ways to double your social media following.

Fake Internet traffic schemes will become the second-largest market for criminal organizations behind cocaine and opiate trafficking.

Bots and fraudsters are feasting on political ad dollars.

People are spending less time on social media apps these days? With Snapchat on pace to have more than 58 million active users this year, we’re skeptical.

The man who created the Internet wants to create a less centralized web with more privacy and less government and corporate control.

Should Twitter limit the number of tweets users can send each day? Other platforms see the value in limiting posts.

In the UK the number of arrests over offensive social media posts is soaring.

Research shows an alarming number of people in the UK can’t distinguish between marketing and non-commercial content on social media, indicating potential breaches of the CAP Code (the UK’s version of the FTC’s Endorsement Guides). Here’s how social media marketers in the UK can stay on the right side of the law.

Google co-founder Larry Page is secretly building flying cars.

Our attention spans are decreasing. Here’s how that should affect your brand’s website and social media strategy.

In a massive recent theft of Twitter usernames and passwords, “123456” was the most commonly used passcode by far. Sigh.

 

In a fascinating, must-read article, a Google design ethicist explains the techniques that engineers and entrepreneurs employ to keep us hooked on the web.

A majority of U.S. adults—62%—now get their news on social media.

An apartment complex in Utah is trying to force its residents to “friend” the complex.

Will the next head of state take over the vast online infrastructure that the Obama administration created as the first administration to digitally engage with its constituency?

Get ready for 74 new emojis.

Tired of being reminded about potentially painful past social media posts? Here’s how to turn off Facebook’s “On This Day” notifications.

Texas inmates are now barred from using social media.

Participating in online social networks in Russia has become risky business.

To comply with a new code of conduct in the European Union, the biggest social media platforms have agreed to remove hate speech within 24 hours.

Are websites a dying business?

Instagram’s mobile app has a new dashboard that allows small businesses to measure the reach of their posts.

Periscope users can now moderate comments during their broadcasts.

Stop telling people there’s a dot in your Gmail address—it doesn’t matter.

Hootsuite CEO Ryan Holmes says it’s important to hop on the Snapchat bandwagon, no matter how old you are. Here’s why.