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. Continue Reading 2018: Predictions From Socially Aware’s Editors and Contributors

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 the Communications Decency Act’s Section 230 safe harbor protection for website operators from claims arising from third-party ads and other content, a revised House bill would require proof of intent to facilitate prostitution, helping to address Internet industry concerns regarding the legislative initiative.

YouTube is making a concerted effort to remove disturbing videos featuring children in distress.

Concerned about the effect fake news could have on the democratic process, lawmakers in Ireland proposed a law that would make disseminating fake news on social media a crime.

A proposed cybersecurity law in Vietnam would require foreign tech companies like Google to establish offices and store data in that country. According to this op-ed, such a relatively late attempt to rein in Vietnam’s social media use would “most certainly trigger a popular backlash” and “seem like a retrograde move.”

A new report from clinical experts in the UK recommends that children younger than five-years-old should never be permitted to use digital technology without supervision.

Snapchat is rolling out a redesign that places all the messages and Stories from a user’s friends to the left side of the camera, and stories from professional social media stars and media outlets that the user follows to the right of it. But will people over the age of 30 still have no idea how to use the platform?

Instagram is testing a direct messaging app that would replace its current inbox. Called Direct, the app stands independent of that Instagram platform and, like Snapchat, opens to the user’s camera.

Artificial intelligence is allowing people to actually enjoy the moments they photograph by significantly cutting down the time it takes to share and catalog pictures.

There’s a browser extension that will hide all the potentially upsetting stories in your social media newsfeeds, but it’s not perfect. And maybe that’s a good thing.

Hmmm—in a tumultuous year, the ten most-liked posts on Instagram of 2017 all belong to Beyoncé, Cristiano Ronaldo or Selena Gomez.

In contrast, the most popular tweets of this year concern politics, tragedy and, well, chicken nuggets.

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 complaint against social media influencers individually. The case involved two online gamers who posted videos of themselves promoting a gaming site that they failed to disclose they jointly owned.

In a precedent setting opinion, the European Court of Human Rights held that the right to privacy of a Romanian man, Bogdan Bărbulescu, was violated when Bărbulescu’s employer, without explicitly notifying Bărbulescu, read personal messages that Bărbulescu sent from an online account that Bărbulescu had been asked to set up for work purposes.

In other European news, the attorney general for England and Wales, Jeremy Wright, MP, has begun an inquiry into whether that jurisdiction needs to impose restrictions on social media in order to help ensure criminal defendants there get a fair trial.

More than half of Americans 50 or older now get their news from social media sites, Pew Research Center’s 2017 social media survey shows.

Celebrities who promote initial coin offerings (ICOs) on social media risk violating laws that apply to the public promotion of securities.

Facebook developed an artificial intelligence robot that can express emotion by making realistic facial expressions at appropriate times.

A college student has sued Snapchat and the Daily Mail for alleged defamation and invasion of privacy arising from the use of the student’s name and image on Discover, Snapchat’s social news feature, under the headline, “Sex, Drugs and Spring Break—College Students Descent on Miami to Party in Oceans of Booze and Haze of Pot Smoke.”

Is the threat of artificial intelligence disrupting a slew of industries less imminent than we thought?

Google created a website that uses fun illustrations to show which “how to” queries its users entered into the search engine most.

The popularity of online videos that viewers can appreciate with the sound turned off has led to striking similarities between early silent film and modern social video.

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 for free. In another attempt to advance its use of technology, SCOTUS updated its website.

Approximately 40% of the world’s population is now active on social media.

Researchers who tried to identify people suffering from depression by examining their Instagram photos had a 70% success rate.

DoNotPay, a chatbot that has helped drivers to overturn 375,000 parking tickets so far, is expanding to help consumers tackle nearly one thousand other legal issues without the help of an attorney.

The number of Internet-of-Things-related companies is fast multiplying. This Forbes piece lists the IoT categories that are attracting the most interest from entrepreneurs and investors.

Companies that allow hiring managers to check out job candidates’ social media accounts could be exposing themselves to legal trouble.

Beware requests to connect on social media from people you don’t actually know. A known hacker group used a fake LinkedIn profile to connect with people working at certain companies and trick them into installing malware on their company computers.

Using blockchain, companies organized as Decentralized Autonomous Organizations do away with the need for senior executives and managers by allowing stakeholders to vote on every decision the company faces—including the fate of employees who underperform.

A survey of 2,000 Britons about their pet social-media-peeves showed that bragging about your kids might hurt your popularity online. Read the full list of cyber activities that most people consider Facebook faux pas.

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 brought by a woman who sued Universal Music Group for directing YouTube to take down a video of her toddler-age son dancing to Prince’s “Let’s Go Crazy.” The high court’s decision leaves in place the decision of the Ninth Circuit Court of Appeals holding that copyright owners must consider the possibility of fair use before sending a DMCA takedown notice.

Queen Elizabeth II proposed to Parliament a law that would require social networking sites to honor Internet users’ requests to remove anything the users shared before turning 18. The European Union already requires search engines to abide by users’ requests to remove information as part of the “right to be forgotten,” but the information must fulfill several criteria to qualify for removal.

In an effort to minimize the extent to which social bots can manipulate public opinion, Germany plans to update its communication laws to require the operators of social media platforms to identify when posts were generated by social bots and not actual people. And, yes, the name in German for this labeling requirement is Kennzeichnungspflicht.

In other German social-media-news, police in that country raided the homes of 36 people accused of posting on social media hate speech that included threats and harassment based on race and sexual orientation, and left-wing and right-wing extremist content.

Making Texas one of 18 states to pass a bill on self-driving cars, Lone Star State governor Greg Abbott signed a bill confirming that car manufacturers may test autonomous vehicles on Texas roads and highways.

Bitcoin’s price might be surging, but it has yet to achieve widespread usage.

Motivated in part by her desire to avoid real-estate-agent fees, a London homeowner plans to sell her house by hosting a viewing on Facebook Live and receiving offers through Facebook Messenger.

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.

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 Election Day.

Facebook is testing a feature that allows company Page administrators to post job ads and receive applications from candidates.

People who create or encourage others to use “derogatory hashtags” on social media could be prosecuted in England and Wales.

A new “tried it” checkmark on pins will allow Pinterest users to share the products and projects they’ve purchased or attempted.

Did social media ads allow political campaigns to circumvent state laws prohibiting the visible promotion of candidates within a certain distance of polling places?

The Eight Circuit held that a college has the right to expel a student from its nursing program for inappropriate social media posts about his classmates, including the suggestion that he would inflict on one of them a “hemopneumothorax”—a lung puncture.

Law enforcement officials are increasing their use of social media to locate missing persons.

An unemployed single mother in California is facing several misdemeanor charges for selling her ceviche over social media.

Coming soon to a vending machine near you: Snapchat Spectacles (but only if you live in a densely populated area like New York or Los Angeles).

Social media analytics firms claim that social media did a better job at predicting Trump’s win than the polls.

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 the people with whom they corresponded. Without such laws, access to a deceased person’s digital assets might depend on the various social media platforms’ terms of use.

In lawsuits, social media has occasionally made it easier to serve process on adverse parties, but it has also made it more difficult to ensure that jurors remain unbiased.

A UK company wants to set car insurance premiums using an algorithm that analyzes car owners’ Facebook posts for pertinent personality traits?! The plan likely won’t go far; it violates Facebook’s platform policy.

Kenya deported a registered refugee for posting to social media his support of the U.N. secretary-general’s firing of a Kenyan commander of a peacekeeping mission in South Sudan, the refugee’s native country.

Thinking of posting a photo of yourself in the voting booth on Tuesday? Not so fast. In many states it’s illegal to share on social media photos of completed ballots and photos of yourself inside a voting booth. Courts all over the U.S. are hearing challenges to these so-called “ballot selfie” laws.

Does a lawyer violate ethics rules by purchasing the names of competing lawyers or law firms as keywords that improve the purchasing lawyer’s own rank in Google search results?

In the three years since its launch, an app called Scholly, which matches students with a personalized list of scholarships, has been downloaded over a million times. Here’s some advice for other social entrepreneurs from the company’s 25-year-old founder and CEO.

Some researchers believe the likes, status updates and photos posted to social media platforms will someday be the source material for breakthroughs in the field of psychiatry.

A UK solicitor was fined by a professional conduct regulator for posting a series of “unprofessional and offensive” tweets bragging about his victory over vulnerable adversaries.

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. Continue Reading UK Consumer Protection Regulator Cracks Down on Undisclosed Endorsements and “Cherry Picking” Reviews on Social Media

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 time involving unauthorized access to Facebook’s website.

The fashion world is embroiled in a rocky romance with social media.

Snapchat filed a patent application for image-recognition technology that may help the platform’s ad sales.

Scientists think they’ve found a way to tackle virtual reality sickness.

What’s going on at Vine? First a bunch of influencers cut ties with the platform. Now a group of its top executives have jumped ship.

Livestreaming services are giving cable TV networks a run for their money.

You didn’t think we’d ignore the Pokémon Go craze, did you? Here’s advice on how to protect your privacy when you’re using the app. We’re also preparing an article describing the game and the business and legal issues that are arising from it. Stay tuned.