We’ve all been there: How many times have we downloaded a new social media app, only to have one of the sign-up steps ask for access to our contacts or address book? While on the surface the request seems innocent enough – the whole point of social media is to be social and connect with others – some apps may take that access too far, raising questions and both legal and ethical issues around personal data privacy and security.

Take, for example, the new, wildly popular, invitation-only audio chat app Clubhouse. One of the first steps the app requests of the user is access to her or his contacts. While not a required step, not granting access to contacts defeats the purpose of signing up for the service in the first place, as the app won’t allow the user to invite others to join in.

Many apps require access to features on one’s device to work properly: for example, without location access, ride-share services, such as Lyft and Uber, won’t work.

But granting access to one’s entire contacts address book – both past and present – provides the app platform usage rights in ways that the user may not always want to grant either willingly or unwillingly.

A recent article from One Zero unpacked the issues surrounding data-handling practices and provided several useful – and sometimes disturbing – examples of Clubhouse members who unwillingly offered access to their contacts, only to witness uncomfortable and sometimes embarrassing connections for the invitation-only app.

Many other social connection apps that have proliferated in the last year or two (especially in the light of the COVID-19 pandemic) use similar methods. Apps, such as House Party, GroupMe, Yubo, Hoop, Telegram, Discord, and Line, all use connection algorithms to suggest friends and contacts from the user’s address books.

The proliferation of these social apps presents tremendous business opportunities to platform developers. With those opportunities come responsibilities to develop a robust and transparent set of disclosures and disclaimers to ensure these apps maintain high levels and standards of data privacy for subscribers and those subscribers’ contacts, be they direct or indirect users.

In Stover v. Experian Holdings, the Ninth Circuit decided an issue of first impression for the circuit, holding that a party’s single visit to a website four years after her original visit—when she agreed to an online contract containing a change-of-terms provision—is not enough to bind her to an arbitration provision that she wasn’t aware of and that appeared in a later version of the contract.

The panel held “a mere website visit after the end of a business relationship” is not enough “to bind parties to changed terms in a contract pursuant to a change-of-terms provision in the original contract.”

In something of a departure from the typical case involving modification of an online contract, the plaintiff in the case, Rachel Stover, asserted that the updated arbitration provision did apply, while the defendant website operator, Experian, argued that the parties remained subject to the original terms. Continue Reading Role Reversal: Ninth Circuit Rejects Consumer’s Attempt to Enforce Updated Arbitration Provision in Website Terms of Use

Morrison & Foerster’s Appellate Group has created two unique blogs containing invaluable information:

The Federal Circuitry blog takes a data-driven look at the Federal Circuit; and

The Left Coast Appeals blog offers an empirical window into the Ninth Circuit’s workings, monitors the Ninth Circuit’s busy en banc proceedings, and highlights key recent Ninth Circuit decisions.

Don’t miss out. Log on and subscribe today!

Experts anticipate that the incoming Biden administration will be tough on tech. What does that mean for the future of §230 of the Communications Decency Act? The antitrust suit against Google? This NPR piece makes some predictions.

Human rights activists are outraged over a proposed law in France that would makes it illegal to publish images of police officers with intent to cause them harm. Supporters of the law, which was passed partly in response to demands from police unions, argue that it doesn’t ban people from filming police in action, but rather, just from using the images to cause them physical or psychological injury.

Regulations in Pakistan expand the power of the Pakistan Telecommunication Authority (PTA) by allowing the agency to require social media platforms with more than half a million users in the country to register with the PTA and establish a permanent office and database servers in Pakistan.

We’ve discussed the U.S. Federal Trade Commission’s Use of Endorsements and Testimonials in Advertising on Socially Aware. Here are some tips on how to comply with the UK’s guidelines for social media influencers.

Trying to use social media to convince people that COVID-19 vaccinations are the way to end the pandemic? Think again. Harris Poll endorsements show that “more than half of Americans say they have little or no trust in social media when it comes to information on the COVID-19 vaccine.”

Reports of social media scams that have caused users to lose money had tripled by the end of 2020’s second quarter, resulting in the loss of $117 million during the first two quarters of this year alone. Romance scams and supposed economic relief offers are a large part of the problem, but e-commerce scams are the biggest culprits, with goods advertised on social media never reaching the consumer. The FTC is offering tips to help you avoid becoming a victim.

Should the FCC curtail Section 230 of the Communications Decency Act’s protection of sites for liability for third-party content? Both the FCC’s Chairman Ajit Pai, and Tom Johnson, the FCC’s general counsel, have alluded to the FCC’s power—and their desire—to do it.

Yout.com is seeking a declaratory judgment holding that the site does not violate copyright law by allowing users to obtain permanent downloads of music that YouTube temporarily streams. The suit was instigated by the Recording Industry Association of America’s requests that Google de-list Yout.com because such listing allegedly violates the Digital Millennium Copyright Act. Yout.com is arguing that, like a VCR, it merely allows users to “time-shift” by listening to content at a different time than it is presented.

The New York State Department of Financial Services is demanding that the world’s biggest social media platforms establish positions dedicated to monitoring their cyber defense. The call for designated regulators comes in the wake of the financial watchdog’s investigation into an incident back in July in which three people compromised more than 100 Twitter accounts, including those of former President Barack Obama and former Vice President Joe Biden.

A district attorney in Los Angeles is seeking to dismiss more than a dozen cases in which testimony pivotal to a conviction was given by police officers who published comments or images on social media that were derogatory toward women, Muslims or people of color.

For the first time ever, a vote has been cast for a US president in the general election using an app on a personal mobile phone.

In Ganske v. Mensch, a defamation suit stemming from a “battle by Tweet,” a federal district court in New York held that the allegedly defamatory statements in the defendant’s Tweet were nonactionable statements of opinion and dismissed the case. The case illustrates that courts in such “Twibel” (Twitter + libel) cases may view Tweets and similar statements on social media as informal and “freewheeling” in nature, which reasonable readers would understand to be expressions of opinion rather than statements of fact.

Charles Ganske, a former Associated Press (AP) journalist, sued Louise Mensch, a blogger and former member of the British Parliament, for defamation and tortious interference. Ganske argued that Mensch defamed him and interfered with his employment at AP based on a single Tweet that she posted on July 27, 2018, by which she “interjected herself” into a Twitter thread between Ganske and another Twitter user with the handle @Conspirator0.

Mensch’s Tweet from her @patribotics Twitter account stated: “To this xenophobic tweet of yours, sir, I fear we must tell @APCentral ‘citation needed’. You clearly personally spread Russian bots on your own site; and @Conspirator0 work on it has sent you into a frenzy of tweeting and trying to discredit him.”

Ganske claimed that Mensch’s Tweet contained false and defamatory statements about him because neither he nor his Tweets were xenophonic and he never spread Russian bots on any website. He also alleged that Mensch deliberately tagged his employer, AP, and published the Tweet to @APCentral in order to interfere with his employment. Ganske’s employment with AP was later terminated, and Ganske argued that this was the result of Mensch’s Tweet. Continue Reading S.D.N.Y. Dismisses Defamation Case Arising Out of “Battle by Tweet”

A recent ruling in Parziale v. HP, Inc., arising out of the implementation by Hewlett-Packard (“HP”) of a remote firmware update on many models of the company’s printers, highlights the potentially broad application of the Computer Fraud and Abuse Act (“CFAA”). It also serves as a reminder to technology companies that when distributing software and firmware updates, they must be mindful of providing specific advance notice that such updates may impact product or computer performance.

The Computer Fraud and Abuse Act

In 1986, Congress enacted the CFAA, reportedly in response to concerns arising from the Matthew Broderick film War Games, in which a teenage computer hacker accesses a U.S. Defense Department computer, unintentionally starts the launch sequence on the U.S. nuclear arsenal thinking it is a computer game, and comes close to starting World War III. Saving us all from annihilation, Broderick teaches the computer that when it comes to global thermonuclear war, “the only winning move is not to play.”

The CFAA is the primary computer crime law in the United States. Over the years, it has been amended several times and has broad application. The CFAA criminalizes fraud and certain other specified activities in connection with unauthorized access to computers. The CFAA also provides for civil remedies based on the same prohibited conduct. Continue Reading Avoiding Claims Under the Computer Fraud and Abuse Act in Connection with Software and Firmware Updates

In an attempt to shut down free speech online, Turkey enacted a law that requires social media platforms with more than a million daily users in Turkey to open an office there or assign a representative who is legally accountable to Turkish authorities. Among other things, the law also requires companies to respond within two days to complaints about posts that “violate personal and privacy rights.” Learn what social media companies risk if they don’t comply.

Significantly deviating from his former choices for FCC Commissioner, President Trump nominated Nathan Simington to replace current Republican Commissioner Mike O’Reilly. Unlike previous nominees, who were not heavily involved in technology policy, Simington “played a significant role in drafting” an order instructing the FCC to limit Section 230 of the Communications Decency Act’s protections for technology companies, according to The Verge. Find out why Trump revoked O’Reilly’s nomination for a third term.

Spending on advertising in general plummeted in Q2 of 2020 compared to the same quarter last year, with newspaper ad spend dropping by nearly 50% and radio ad spend dropping by about 42%. On the other hand, the dip in social media ad spend was far less significant. Analysts attribute advertisers’ continued interest in social media to COVID-19, saying that social media use skyrocketed during quarantine. Find out how little social media’s advertising revenue dropped in Q2 2020.

Some of YouTube’s top earners are children. France just passed a law to limit the hours they work and place their earnings in a bank account until they turn 16. You won’t believe the staggering amounts of cash some of these kids rake in.

Harvard Law School has a new social media policy precluding students from posting statements made in class together with enough information to make the speaker identifiable by someone who was not present in class. Learn the school’s reason for implementing this new policy.

A private investigator in Sacramento, California—where a new law classifies COVID-19 as an “injury” under workers’ compensation when certain circumstances apply—is using people’s social media posts as evidence that they didn’t contract COVID-19 at work.

Doomswiping” is the latest dating-app trend.

The USPTO recently released the report “Public Views on Artificial Intelligence and Intellectual Property Policy”. The report is part of the USPTO’s effort to engage with the innovation community and experts on AI and to promote innovation of AI through appropriate intellectual property incentives.

The report includes the analysis of nearly 200 responses received from individuals and organizations to federal notices published in August and October 2019 to solicit public comments on patenting AI inventions and the impact of AI on other areas of intellectual property policy. The USPTO requested feedback on issues such as whether current laws and regulations regarding patent inventorship and authorship of copyrighted work should be revised to take into account contributions other than by natural persons.

AI in Evolution. As an initial matter, commenters noted that AI has no universally recognized definition, and any definition used as part of an AI policy must be dynamic enough to evolve as AI technology evolves. Some suggested that the USPTO revisit the question of non-human inventions when artificial general intelligence (AGI)—AI that mimics human intelligence—is a reality and not just “purely hypothetical.”

Sufficient and Not Necessary. The majority of respondents took the view that current U.S. IP laws provide sufficient protection for development using current AI technology. To many, existing contract law principles can be used to adequately fill in any gaps as AI technology further advances. Generally, commentators were divided on the need for new intellectual property rights to address AI inventions. Those focusing on new protections were focused mostly on data, with some suggesting that advances in AI should warrant more protection for data rights, including sui generis protection.

Human Not Machine Inventors. With respect to patents, commenters agreed in large part that, for now, humans, not machines, must be inventors. Further, most agreed that only a natural person or a company, through an assignment, should be considered the owner of a patent or an invention, although some suggested extending ownership to those who train an AI process or own or control an AI system. Other respondents were concerned on the practical effects of recognizing non-natural inventors, e.g., how would a machine sign an oath?

Continue Reading In the Public Eye: USPTO Issues Report on AI

Thomson Reuters’ The Daily Docket interviewed Cecillia Xie about her popular TikToks, where she mentors followers and helps them navigate law school and legal careers.

“What I want to encourage young attorneys to do is take a step back from the environment of law school and think about what really makes them happy and what practices would make their career rewarding,” Cecillia said.

Read the full article.