• Going mainstream. For the first time, both Twitter and Facebook are seeing significant growth in online advertising placed by major companies for brands such as Heineken, Tide, McDonald’s, and Charmin. Major consumer products companies have long struggled with the question of how to reach consumers on their mobile devices, and right now, this appears to

  • Going viral: Silencing its critics, Twitter posted strong second quarter results, adding 16 million new monthly active users and boosting its user base by 24 percent from this time last year.
  • #Disappointing: In other Twitter news, the company recently revealed data about the composition of its workforce. It turns out that 90 percent of

  • An Illinois woman was arrested on July 11 and charged with theft after she allegedly stole a dress from a boutique in West Frankfort, Illinois, then posted a selfie wearing the dress on her Facebook page. Police Chief Shawn Talluto noted, “[W]hen the social media aspect played into it, we were able to identify who

“Web scraping” or “web harvesting”—the practice of extracting large amounts of data from publicly available websites using automated “bots” or “spiders”—accounted for 18% of site visitors and 23% of all Internet traffic in 2013. Websites targeted by scrapers may incur damages resulting from, among other things, increased bandwidth usage, network crashes, the need to employ anti-spam and filtering technology, user complaints, reputational damage and costs of mitigation that may be incurred when scrapers spam users, or worse, steal their personal data.

Though sometimes difficult to combat, scraping is quite easy to perform. A simple online search will return a large number of scraping programs, both proprietary and open source, as well as D.I.Y. tutorials. Of course, scraping can be beneficial in some cases. Companies with limited resources may use scraping to access large amounts of data, spurring innovation and allowing such companies to identify and fill areas of consumer demand. For example, Mint.com reportedly used screen scraping to aggregate information from bank websites, which allowed users to track their spending and finances. Unfortunately, not all scrapers use their powers for good. In one case on which we previously reported, the operators of the website Jerk.com allegedly scraped personal information from Facebook to create profiles labeling people “Jerk” or “not a Jerk.” According to the Federal Trade Commission (FTC), over 73 million victims, including children, were falsely told they could revise their profiles by paying $30 to the website.

Website operators have asserted various claims against scrapers, including copyright claims, trespass to chattels claims and contract claims based on allegations that scrapers violated the websites’ terms of use. This article, however, focuses on another tool that website operators have used to combat scraping: the federal Computer Fraud and Abuse Act (CFAA).


Continue Reading Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping

  • According to a current study by Bank of America, Americans are very closely attached to their smartphones. Of those surveyed, 85 percent said they check their phone at least a few times a day and 35 percent say they check it constantly. 47 percent of Americans say they couldn’t last more than one day without

Last week the Food and Drug Administration (FDA) promulgated two much-anticipated draft guidance documents on using social media to present information about prescription drugs and medical devices. The draft guidance documents, which were originally promised by the FDA in 2010, represent the FDA’s latest attempt to provide direction for drug and device manufacturers concerning how and when they may use social media.

BACKGROUND

Drug and device labeling and promotion are highly regulated activities, subject to onerous approval requirements enforced by the FDA under the Federal Food, Drug, and Cosmetic Act (the “Act”). Under the Act, “labeling” includes “all labels and other written, printed, or graphic matter” that “accompany” a drug or device. 21 U.S.C. § 321(m); 21 C.F.R. § 1.3(a). This definition has been broadly interpreted by the courts to include materials that supplement or explain a drug or device, even when there is no physical attachment to the drug. See Kordel v. United States, 335 U.S. 345, 350 (1948).

Rapidly growing Internet-based technologies have made it quicker and easier for both manufacturers and independent third parties to disseminate information about drugs and devices. This has led to a host of issues including (1) what drug companies can say online about their drugs without violating the “misbranding” regulations; and (2) what drug companies can do with what third parties have said online about their drugs. The guidance documents attempt to answer both of these questions.

The Twitter Guidance: “Internet/Social Media Platforms with Character Space Limitations – Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices”

The FDA’s position concerning manufacturers presenting “benefit information” for regulated drugs on electronic platforms with character space limitations is laid out in the Twitter Guidance. This Guidance instructs companies on the steps to take to avoid inadvertently “misbranding” a drug by providing information about a drug’s benefits without disclosing accompanying risks. With that in mind, the Twitter Guidance provides the following direction for drug companies seeking to use space-limited social media platforms:

  • Include the brand and established name, dosage form, and ingredient information;
  • Ensure that any benefit information provided is accurate;
  • Accompany benefit information with risk information;
  • Provide direct access to a more complete discussion of the risks associated with the drug or device. Notably, the Twitter Guidance says the link should lead to a page devoted “exclusively” to risk information; and
  • If both benefit and risk information cannot be communicated within the space limit, consider using a different platform.

To prove that it is not impossible to provide the required information within Twitter’s 140 character limit (just very difficult), the Twitter Guidance provides the following – entirely fictional – example of an acceptable tweet:

Notably, this example from the FDA might not prove helpful in reality, especially considering that many drugs would be required to list more than one risk.

The main take-away from the Twitter Guidance is nothing new: to avoid enforcement, provide “truthful, accurate, non-misleading, and balanced product promotion.” If a company cannot achieve this delicate balance within Twitter’s space limitations, it should “reconsider using that platform for the intended promotional message.”


Continue Reading Drugs and the Internet: FDA Distributes New Draft Guidance Regarding Social Media Platforms and Prescription Drugs