Following a recent U.S. district court’s ruling, foreign companies operating cloud-based services may find themselves subject to federal long-arm jurisdiction under the Federal Rules of Civil Procedure 4(k)(2), even if they have no physical presence in the United States. In reaching its decision, the court noted that the question was ripe for consideration by the court of appeals; thus, it remains to be seen whether the decision will stand if appealed.

In Plixer International, Inc. v. Scrutinizer GMHB, the District Court of Maine ruled that, while jurisdiction would not exist under Maine’s long-arm statute, the court had specific personal jurisdiction over a German company under federal long-arm statute. Rule 4(k)(2), the federal long-arm statute, provides that serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction as long as exercising jurisdiction is consistent with the U.S. Constitution and laws.

Continue Reading Foreign Cloud-Based Service Providers May Be Subject to Personal Jurisdiction in the United States

With over one billion websites on the Internet, and 211 million items of online content created every minute, it should come as no surprise that content curation is one of the hottest trends in the Internet industry. We are overwhelmed with online content, and we increasingly rely on others to separate the good from the bad so that we can make more efficient use of our time spent surfing the web.

Consistent with this trend, many websites that host user-generated content are now focused on filtering out content that is awful, duplicative, off-topic, or otherwise of little interest to site visitors. And these sites often find that humans—typically passionate volunteers from the sites’ user communities—are better than algorithms at sorting the wheat from the chaff.

Of course, any website that deals with user-generated content needs to consider potential copyright liability arising from such content. We’ve discussed in past Socially Aware blog posts the critical importance of Section 512(c) of the Digital Millennium Copyright Act (the DMCA) to the success of YouTube, Facebook and other online platforms that host user-generated content. By providing online service providers with immunity from monetary damages in connection with the hosting of content at the direction of users, Section 512(c) has fueled the growth of the U.S. Internet industry. Continue Reading Could the Use of Online Volunteers and Moderators Increase Your Company’s Copyright Liability Exposure?

E-mails. Text messages. Instant messages. Social media. The digital age has given birth to powerful new ways to communicate that have transformed how we live and conduct business. But the proliferation of communication options has come with increased exposure to claims in litigation of withholding, hiding, destroying and losing evidence.

A reminder of the increasing danger of the digital age in discovery recently arose in the New York state attorney general’s investigation of ExxonMobil’s research into the causes and effects of climate change.

After receiving documents from Exxon pursuant to a subpoena, the state attorney general informed a New York court that it had discovered that former Exxon CEO and Chairman Rex Wayne Tillerson had used an alias email address on the Exxon system under the pseudonym “Wayne Tracker” from at least 2008 through 2015. Continue Reading Digital Age Expands Communication but Creates Discovery, Litigation Pitfalls

A defamation suit brought by one reality television star against another—and naming Discovery Communications as a defendant—could determine to what extent (if any) media companies may be held responsible for what their talent posts on social media.

In a move characterized as setting legal precedent, UK lawyers served an injunction against “persons unknown” via an email account linked to someone who was posting allegedly defamatory “fake news” stories on social media.

European regulators fined Google $2.7 billion for violating antitrust law by allegedly tailoring algorithms for product-related queries to promote its own comparison shopping service. If the search company doesn’t change how its search engine works in the EU in the next few months, it risks fines of up to 5% of its parent company Alphabet Inc.’s daily revenue.

A newly formed trade group, called the Influencer Marketing Council, is representing social influencers in discussions with regulators and Internet platforms, and is leading an effort to outline best practices for complying with the FTC’s endorsement guidelines.

Pinterest’s commercial progress has reportedly been hampered by several factors, including the format of its advertisements, which must mimic user posts—something that requires brands to design content specifically for the platform.

Members of law enforcement have expressed concerns regarding the safety risks posed by a Snapchat update that lets users see the exact location of their Snapchat “friends.” An article on The Verge has some useful tips on how to use the function, which is called Snap Map, and how to turn it off.

Because the First Amendment limits the ability of the U.S. government to regulate search companies’ and social media platforms’ policies and guidelines, companies like Google and Twitter might eventually be de facto regulated even within the United States by foreign nations whose governments are entitled to regulate what happens on the Internet in order to protect their citizens according to their own laws.

Several A-list musicians have stepped away from social media at least partly because their incredible popularity has made them an attractive target for trolls.

Here are tips on how to limit online service providers from collecting information about you in using social media and surfing the web.

ARKANSASLast year, this blog raised concerns regarding the TCCWNA, its growing popularity with plaintiffs’ lawyers and the implications for online retailers. At a high level, the TCCWNA is a New Jersey consumer protection law that focuses on contractual terms (including online terms of service) governing transactions between sellers/service providers and New Jersey consumers. It prohibits sellers/service providers from including certain common provisions in their contracts with New Jersey consumers, and provides aggrieved New Jersey consumers with the right to recover from the seller/service provider a civil penalty of not less than $100 per violation. The TCCWNA applies even if the relevant contractual terms are expressly governed by the laws of a state other than New Jersey. Continue Reading E-tailers Rejoice as Decisions Limit Lawsuits in Federal Court for Alleged Violations of New Jersey’s Controversial Consumer Protection Law

One year since agreeing with the European Commission to remove hate speech within 24 hours of receiving a complaint about it, Facebook, Microsoft, Twitter and YouTube are removing flagged content an average of 59% of the time, the EC reports.

The U.S. Court of Appeals for the Second Circuit held that a catering company violated the National Labor Relations Act when it fired an employee for posting to Facebook a profane rant about his supervisor in response to that supervisor admonishing him for “chitchatting” days before the employee and his coworkers were holding a vote to unionize.

The value of the digital currency Ether could surpass Bitcoin’s value by 2018, some experts say.

The Washington Post takes a look at how the NBA is doing a particularly good job of leveraging social media and technology in general to market itself to younger fans and international consumers.

A judge in Israel ruled in favor of a landlord who took down a rental ad based on his belief that a couple wanted to rent his apartment after they sent him a text message containing festive emoji and otherwise expressing interest in the rental. The landlord brought a lawsuit against the couple for backing out on the deal, and the court held the emoji in the couple’s text “convey[ed] great optimism.” The court further determined that, although the message “did not constitute a binding contract between the parties, [it] naturally led to the Plaintiff’s great reliance on the defendants’ desire to rent his apartment.” For a survey of U.S. courts’ treatment of emoji entered into evidence, read this post on Socially Aware.

The owner of a recipe site is suing the Food Network for copyright infringement, alleging that a video the network posted on its Facebook page ripped off her how-to video for snow globe cupcakes.

Twitter’s popularity with journalists has made it a prime target for media manipulators, The New York Times’s Farhad Manjoo reports. As a result, Manjoo claims, the microblogging platform played a key role in many of the past year’s biggest misinformation campaigns.

The Knight First Amendment Institute at Columbia University claims that the @realDonaldTrump Twitter account’s blocking of some Twitter users violates the First Amendment because it suppresses speech in a public forum protected by the Constitution.

Pop singer Taylor Swift, who pulled her back catalogue of music from free streaming services in 2014 saying the services don’t fairly compensate music creators, has now made her entire catalogue of music accessible via Spotify, Google Play and Amazon Music.

To encourage young people in swing constituencies to vote for Labour in the UK’s general election, some Tinder users turned their profiles over to a bot that sent other Tinder users between the ages of 18 and 25 automated messages asking if they were voting and focusing on key topics that would interest young voters.

GettyImages-183313080With over one billion websites on the Internet, and 211 million items of online content created every minute, it should come as no surprise that content curation is one of the hottest trends in the Internet industry. We are overwhelmed with online content, and we increasingly rely on others to separate good content from bad content so we can make more efficient use of our time spent surfing the web.

Consistent with this trend, many websites that host user-generated content are now focused on filtering out content that is awful, duplicative, off-topic or otherwise of little interest to site visitors. And these sites are often finding that humans—typically passionate volunteers from these sites’ user communities—do a better job than algorithms in sorting the wheat from the chaff.

Of course, any website that deals with user-generated content needs to worry about potential copyright liability arising from such content. We’ve discussed in past Socially Aware blog posts the critical importance of Section 512(c) of the Digital Millennium Copyright Act (DMCA) to the success of YouTube, Facebook and other online sites that host user-generated content. By providing online service providers with immunity from monetary damages in connection with the hosting of content at the direction of users, Section 512(c) has fueled the growth of the U.S. Internet industry. Continue Reading Could the Use of Online Volunteers and Moderators Increase Your Company’s Copyright Liability Exposure?

2015 11 30 DJV NAT 218Facebook’s four-year battle on behalf of its users, seeking to quash 381 warrants obtained by the New York County District Attorney’s Office, has come to a close. The decision of the New York Court of Appeals—which is New York’s highest court—leaves Facebook users exposed to wide-ranging and largely unchecked inquiries by New York criminal prosecutors into their Facebook accounts.

The story begins in July 2013, when the New York Supreme Court—which is the trial court in New York—issued 381 warrants arising out of the district attorney’s (DA) application for warrants under the Stored Communications Act (SCA). The DA was investigating an alleged Social Security Disability fraud scheme.

The DA’s request was extraordinarily broad. The warrants functionally amounted to a request for 381 users’ entire Facebook histories. The warrants compelled Facebook to produce not only any and all text, photos or videos a user had shared with his or her limited universe of friends, but also any private messages exchanged between the user and another individual (who could have been a spouse, doctor, religious figure or attorney) as well as information the user had chosen to no longer share with anyone, such as a previous email address, a deleted friend or a hidden post, and information the user had never intended to share with anyone, such as his or her searches and location.

The warrants also compelled Facebook to produce content shared by users who were not named in the 381 warrants, and may not even have known anyone named in the 381 warrants, but who had the misfortune of posting on the timelines of those users uploading photos of those users, or simply belonging to any one of the groups with which a named user was affiliated. At least several of the affected users were high school students who were highly unlikely to have been involved in a Social Security Disability fraud scheme. The issuing court also expressly prohibited Facebook from disclosing the existence or execution of the warrants.

While Facebook receives many such requests from law enforcement each year and often provides information in response, Facebook strongly objected to the wide-ranging requests in this case.

Facebook moved to quash the warrants on the ground that they were overly broad, but the New York Supreme Court denied the motion, finding that Facebook did not have standing to assert any privacy or Fourth Amendment rights on behalf of its users. Facebook also challenged the nondisclosure provisions of the warrants, but again the court sided with the DA, reasoning that disclosure of the warrants could jeopardize the DA’s ongoing investigation.

The intermediate appellate court dismissed Facebook’s appeal. The court explained that the orders from the lower court denying Facebook’s motion to quash were unappealable because, under New York law, there is no authority permitting review of interlocutory orders issued in criminal proceedings.

Facebook took the fight all the way to the New York Court of Appeals. Facebook argued that an order denying a motion to quash an SCA warrant should be treated like an appealable order denying a motion to quash a subpoena, rather than like an unappealable order denying a motion to quash a traditional warrant. While a traditional search warrant authorizes law enforcement officials to enter, search and seize property, an SCA warrant, like a subpoena, requires the target of the warrant to compile and turn over its own digital data.

On April 4, 2017, Facebook lost that fight when New York’s highest court ruled that it does not have authority to hear appeals from motions to quash search warrants issued under the SCA.

In a 5-1 decision, the Court of Appeals concluded that, despite the similarities between the manner of responding to SCA warrants and the manner of responding to subpoenas, an SCA warrant is a warrant, not a subpoena. As with traditional warrants, SCA warrants are only issued in criminal proceedings to a government entity that has supported its request for a warrant with probable cause. The court explained that the difference between execution of traditional warrants and SCA warrants is due to “the nature of the material sought”—it “ensures efficiency and minimizes intrusion” for a service provider to search and compile its own digital information rather than for law enforcement to conduct the search. Accordingly, the Court of Appeals found that the order denying Facebook’s motion to quash was not appealable.

Further, the Court of Appeals suggested that Facebook may not have had a right to bring a motion to quash in the first place. For purposes of this case, the Court of Appeals assumed, without deciding, that a motion to quash an SCA warrant was proper. However, the court noted that the SCA discusses warrants, subpoenas and court orders requiring disclosure of information separately, and only expressly provides for a motion to quash court orders.

The Court of Appeals did express some sympathy for Facebook’s concerns regarding the privacy of its users. At the outset, the court stated that “[t]his case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizures,” and that it was “tempting for the court to address those issues.” The court also noted that “Facebook’s concerns, as a third party, about overbroad SCA warrants may not be baseless.”

Notwithstanding its expressed concerns, and over a strenuous dissent from Judge Wilson, the New York Court of Appeals has provided criminal prosecutors wide-ranging investigative powers without providing Internet service providers an ability to obtain appellate review. With New York’s high court having spoken, the online industry’s focus is likely to shift toward a legislative fix that will promote users’ privacy interests and limit overreaching SCA warrants.

*        *       *

For other Socially Aware posts addressing user data and the Stored Communications Act, please see the following: Google Ordered to Comply with Warrant for Foreign-Stored User Data; Second Circuit: Email Stored Outside the U.S. Might Be Beyond Government’s Reach; and We’ve Come for Your Tweets: Twitter to Appeal Denial of Its Motion To Quash District Attorney’s Subpoena.

 

A nice overview of the rules on researching jurors’ social media accounts in various jurisdictions from Law.com.

The importance of appearing at the top of Google search results, especially on mobile devices, is driving retailers to spend more and more on the search engine’s product listing ads, which include not just text but also the photos of products.

Researchers at the Massachusetts Institute of Technology designed a mobile robot that 3D-printed a building that is 50-feet-wide in 14 hours.

In the second half of 2016, Facebook received 9% more global government requests for users’ account data and—largely because users had stopped posting images of the 2015 Paris terrorist attack victims’ remains, which was against French law—28% fewer global government requests to remove content that violates local law.

After Kashmiris posted photos and videos depicting alleged military abuse in the days following a violence-plagued local election, authorities in the Indian-controlled region banned 22 social media sites, claiming it was necessary to restore order.

At the UEFA Champions League final in Cardiff, Wales, this summer, British police will pilot a new automated facial recognition (AFR) system to scan the faces of attendees and compare them to a police “persons of interest” database.

To show concerned citizens—and criminals—that they mean business, police in an Alabama city are live-broadcasting arrests on Twitter.

The data collected by the physical-activity-tracking device worn by a Connecticut murder victim contradicts the timeline of events given by her husband, a suspect.

One of the Kardashians is being sued by a photo agency for allegedly copying a copyrighted photo of her and posting it to her Instagram account.

And on the subject of user-generated content, owners of video content that is posted by users to Facebook without authorization can now claim ad earnings for the infringing content and set automated rules that will determine when infringing content should be blocked.

The editor of the MIT Technology Review provided interesting insights to Chatbots Magazine regarding the future and current state of artificial intelligence.

Police in Silicon Valley arrested a man for allegedly knocking down a 300-pound security robot while he was intoxicated.

GettyImages-525955707-600pxThe Fifth Circuit Court of Appeals recently considered in BWP Media USA, Inc. v. T&S Software Associates, Inc. whether volitional conduct is required to establish a claim for direct copyright infringement against an Internet service provider (“ISP”). The defendant ISP, T&S Software Associates (“T&S”), hosted a website that included a public forum called “HairTalk” where users could post content about hair, beauty, and celebrities.

HairTalk users posted photographs of Ke$ha, Julianne Hough, and Ashlee Simpson that were owned by the plaintiffs, BWP Media USA and National Photo Group (“BWP”), without BWP’s authorization. The plaintiffs sued T&S for direct and secondary copyright infringement based on the users’ posts. The district court granted summary judgment in favor of T&S as to both direct and secondary infringement and BWP appealed the judgment as to the direct infringement claim. Continue Reading 5th Circuit: ISP Not Liable for Infringement Due to Lack of Volitional Conduct, Despite Ineligibility for DMCA Safe Harbor