Happy 2018 to our readers! It has become a Socially Aware tradition to start the New Year with some predictions from our editors and contributors. With smart contracts on the horizon, the Internet of Things and cryptocurrencies in the spotlight, and a number of closely watched lawsuits moving toward resolution, 2018 promises to be an exciting year in the world of emerging technology and Internet law.

Here are some of our predictions regarding tech-related legal developments over the next twelve months. As always, the views expressed are not to be attributed to Morrison & Foerster or its clients.

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

Web scraping is an increasingly common activity among businesses (by one estimate, web-scraping bots account for as much as 46% of Internet traffic), and is helping to fuel the “Big Data” revolution. Despite the growing popularity of web scraping, courts have been generally unsympathetic to web scrapers. Last August, however, web scrapers finally received a huge victory, as the U.S. District Court for the Northern District of California enjoined LinkedIn from blocking hiQ Labs’ scraping of publicly available user profiles from the LinkedIn website in the hiQ Labs, Inc. v. LinkedIn Corp. litigation. The case is now on appeal to the Ninth Circuit; although my sense is that the Ninth Circuit will reject the broad scope and rationale of the lower court’s ruling, if the Ninth Circuit nevertheless ultimately sides with hiQ Labs, the web scraper, the decision could be a game changer, bringing online scraping out of the shadows and perhaps spurring more aggressive uses of scraping tools and scraped data. On the other hand, if the Ninth Circuit reverses, we may see companies reexamining and perhaps curtailing their scraping initiatives. Either way, 2018 promises to bring greater clarity to this murky area of the law.

Regarding the Growing Challenges for Social Media Platforms

2017 was a tough year for social media platforms. After years of positive press, immense consumer goodwill and a generally “hands off” attitude from regulators, last year saw a growing backlash against social media due to a number of reasons: the continued rise of trolling creating an ever-more toxic online environment; criticism of social media’s role in the dissemination of fake news; the growing concern over social media “filter bubbles” and “echo chambers”; and worries about the potential societal impact of social media’s algorithm-driven effectiveness in attracting and keeping a grip on our attention. Expect to see in 2018 further efforts by social media companies to get out ahead of most if not all of these issues, in the hopes of winning over critics and discouraging greater governmental regulation.

Regarding the DMCA Safe Harbor for Hosting of User-Generated Content

The backlash against social media noted in my prior item may also be reflected to some extent in several 2017 court decisions regarding the DMCA safe harbor shielding website operators and other online service providers from copyright damages in connection with user-generated content (and perhaps in the CDA Section 230 case law discussed by Aaron Rubin below). After nearly two decades of court decisions generally taking an ever more expansive approach to this particular DMCA safe harbor, the pendulum begun to swing in the other direction in 2016, and this trend picked up steam in 2017, culminating in the Ninth Circuit’s Mavrix decision, which found an social media platform provider’s use of volunteer curators to review user posts to deprive the provider of DMCA safe harbor protection. Expect to see the pendulum continue to swing in favor of copyright owners in DMCA safe harbor decisions over the coming year.

Regarding Smart Contracts

Expect to see broader, mainstream adoption of “smart contracts,” especially in the B2B context—and perhaps litigation over smart contracts in 2019 . . . .

From Aaron Rubin, Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding the CDA Section 230 Safe Harbor

We noted previously that 2016 was a particularly rough year for Section 230 of the Communications Decency Act and the immunity that the statute provides website operators against liability arising from third-party or user-generated content. Now that 2017 is in the rear view mirror, Section 230 is still standing but its future remains imperiled. We have seen evidence of Section 230’s resiliency in recent cases where courts rejected plaintiffs’ creative attempts to find chinks in the immunity’s armor by arguing, for example, that websites lose immunity when they use data analytics to direct users to content, or when they fail to warn users of potential dangers, or when they share ad revenue with content developers. Nonetheless, it is clear that the knives are still out for Section 230, including in Congress, where a number of bills are under consideration that would significantly limit the safe harbor in the name of combatting sex trafficking. I predict that 2018 will only see these efforts to rein in Section 230 increase.
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In an effort to deter hate groups from tweeting sanitized versions of their messages, Twitter has began considering account holders’ off platform behavior when the platform evaluates whether potentially harmful tweets should be removed and account holders should be suspended or permanently banned.

In connection with Congressional efforts to deter online sex trafficking by narrowing

In 2016, brands spent $570 million on social influencer endorsements on Instagram alone. This recode article takes a looks at how much influencers with certain followings can command, and whether they’re worth the investment.

And don’t overlook the legal issues associated with the use of social media influencers; the FTC just settled its first

A federal district court in Wisconsin struck down the first law in the country requiring augmented-reality-game makers to go through a complicated permit-application process before their apps could be used in county parks.

The U.S. Supreme Court on Nov. 13 will implement an electronic filing system, making all new documents available to the public

The U.S. Supreme Court unanimously held that a North Carolina law that the state has used to prosecute more than 1,000 sex offenders for posting on social media is unconstitutional because it violates the First Amendment.

The U.S. Supreme Court denied certiorari in what has become known as the  “dancing baby” case—a lawsuit

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

The Internet Movie Database (IMDb) has filed suit to overturn a law that requires the popular entertainment website to remove the ages or birth dates of people in the entertainment industry upon request.

Vine might not be history after all.

Twitter users posted more than one billion election-related tweets between the first presidential debate and

Because it bases its assesments on job title, location and industry, LinkedIn’s new Salary feature might be more accurate than are other online compensation estimation tools.

States are trying to pass laws that balance bereaved people’s desire to access their deceased loved ones’ social media accounts with the privacy interests of the account holders and

Thumbs Up on Social Technology and Internet Set

Social media is reportedly rife with influencers promoting or reviewing products or services without disclosing compensation or other consideration that they’ve received for such endorsements. The Competition and Markets Authority (CMA), the UK’s consumer protection regulator, is stepping up efforts to combat such undisclosed endorsements.

Following a ruling against an influencer marketing company, Social Chain Ltd, the CMA has warned 15 companies and 43 “social media personalities” who used Social Chain to publish content on social media that they could be in breach of UK consumer protection laws.

As we have discussed many times in Socially Aware, the advertising landscape has undergone a dramatic transformation over the past decade. The rise of social media and ever-increasing levels of Internet access across the world have made social media advertising a strong challenger to more traditional—and expensive—advertising methods, such as television advertising.

Of course, there is nothing novel in companies seeking to use celebrities to attract attention to and create excitement for their brand messages. But what has changed is the medium; when a consumer follows a celebrity on YouTube, Instagram, Facebook, Snapchat or Twitter (especially a social media personality who has become famous as a result of being on YouTube, Instagram, etc.), it’s not always easy to distinguish between a genuine opinion and an advertisement.
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The UK wants to use the blockchain to track the spending of welfare recipients.

Some believe that a recent Ninth Circuit holding could turn sharing passwords into a federal crime under the Computer Fraud and Abuse Act.

And another Ninth Circuit opinion sided with Facebook in a closely-watched case interpreting the same federal law, this