Facebook under fire for Facial Recognition Technology

Facebook under fire for Facial Recognition Technology

In a previous post, we discussed how we will be seeing a rise in litigation over biometric data in the near future. Facebook’s photo tagging lawsuit is one of the first examples. Despite Facebook’s attempts to throw out the case, a federal judge has permitted a class action lawsuit against the social media giant’s facial-recognition technology. The technology automatically matches names to faces in photos uploaded to Facebook. It was an attempt to make “tagging” friends easier for users and first became available in 2010.

The case was initially filed in Illinois and has since transferred to California. The suit alleges that Facebook’s facial-recognition technology violates an Illinois Biometric Information Privacy Act (BIPA) statute by not informing users about the collection of biometric data. Facebook has said that photo-tagging is disclosed in its terms of service and that users can opt out of the technology at any time. Judge Donato, the San Francisco federal judge who denied Facebook’s request to toss the lawsuit, said protecting the privacy of its users must be a priority for Facebook and that collecting biometric data without their permission is unethical. Facebook previously said they invented the technology to help users, but did not comment on Judge Donato’s decision.

Why is Facebook being targeted?

Facial recognition technologies have been widely used by other social media websites and apps as well. Snapchat is a great example. The app uses the front-facing camera to put “filters” on the user’s face. Like Facebook, Snapchat is known to use facial recognition technology to store information about its users. This brings up the question of why Facebook is being targeted, while other social media websites and apps seem to be getting a free pass. The answer is actually quite simple: Facebook is too good at facial recognition. When comparing Facebook’s facial recognition technology to the FBI’s system, Facebook performs much better. According to Facebook, they are able to identify a person correctly 98% of the time. The FBI’s General Identification system only identifies people correctly 85% of the time. Part of the problem with the FBI’s system is that they are only able to recognize photographs taken straight on, such as a mugshot, whereas Facebook can identify users in nearly any setting. The FBI also has a larger database than Facebook to search. Facebook’s facial recognition software has become one of the world’s most advanced systems in the world and this lawsuit may be seen as an attempt to curve their power and capabilities.

Sources referenced:

  1. ABA Journal
  2. USA Today
  3. NPR
California Authorities and Biometric Technology

California Authorities and Biometric Technology

Police Departments and Biometric Data

Police departments in California have been using biometric data to identify fingerprints and recognize faces in an effort to find suspects. Agencies around the state have been using smartphone cameras and mobile apps to recognize faces of suspects. Los Angeles, San Jose, and a couple of other agencies use fingerprint data from biometrics to match them with criminal files. Some police departments are also beginning to use tattoo and iris recognition to catch lawbreakers. Los Angeles County police departments are willing to go as far as using DNA recognition and analysis to catch criminals, but this new technology will likely come with a hefty price tag. The facial and tattoo recognition biometric technology has already cost $2 million and the next step of the technology can cost up to $10 million.

Why are Los Angeles Country Police Departments in the Spotlight?

Los Angeles County police departments seem to be at the forefront of biometric technology. This may be a result of the San Bernardino Shooting. As people around the nation were watching Apple and the FBI battle over unlocking the San Bernardino shooter’s phone, something else was going on in Glendale, a city only an hour away from San Bernardino. Authorities in Glendale had found a phone that belonged to an Armenian gang member. When they found the suspect’s girlfriend,Paytsar Bkhchadzhyan, authorities wanted her to unlock her phone so they could get more information about the alleged gang activity. Her iPhone was protected by her fingerprint, but she was required to comply with the authorities and provide her fingerprint. This forced many to ask the question of how far the government could go to obtain fingerprints and other biometric markers.

Is the government going too far with biometric data?

Many lawyers and scholars were outraged after Bkhchadzhyan was forced to provide her fingerprint. Law professor Susan Brenna said the contents of a phone may be incriminating and therefore forcing someone to provide their fingerprint may be a violation of the 5th Amendment. Bkhchadzhyan’s finger was seen as testimony by many scholars and the information in the phone was seen as physical evidence. The US Supreme Court allows authorities to search phones and has permitted authorities to compel people in custody to provide fingerprints without a judge’s permission. Many people were upset by this issue of forced unlocking with a fingerprint, but others argue that the information found in a phone is similar to something that would have been found with a warrant. George Dery, a law professor and a lawyer, said, “Before cell phones, much of this information would be found in a person’s home. This has a warrant. Even though it is a big deal having someone open up their phone, they’ve gone to a judge and it means there’s a likelihood of criminal activity.”

The legal battle between Apple and the FBI really forced many people to take a critical view at the government and how authorities may be collecting too much information about average Americans. Although it was uncommon to see lawsuits over fingerprints and biometric data in the past, we expect to see a lot more litigation on this issue in the coming years. Since police departments in California are working on purchasing newer technologies to gather more data, we may see more lawsuits arising in the state in the near future.

Sources referenced:

  1. ABA Journal
  2. PC Mag
  3. Los Angeles Times
The Rise of the Blawggers

The Rise of the Blawggers

Although the National Law Journal may no longer have a Legal Blog Watch, law blogging has reportedly been flourishing in the past years. More and more lawyers are blogging, whether it is to draw potential clients or to market their expertise. In fact, 18 of the top 25 law firms in the nation regularly blog, according to Am Law’s 200 Blog Benchmark Report. The agency found that between the years 2008 and 2015, they saw an exponential growth in the number of law firms blogging. In less than a decade, they reported seeing 74 law blogs increase to 692. However, these reports might be too optimistic.

The American Bar Association’s Legal Technology Survey Report also found an increase in the number of bloggers, but not anything as significant as Am Law’s report. They found that only 26% of law firms reported having a blog in 2015. While this is up from the 22% in 2012, the number has decreased from the 27% they saw in 2013. As it is clear to see, Am Law and the ABA are conflicted on how big of an increase there has been in the number of blawggers. The ABA also found that blogging and blog readers have changed. In the past, someone would post a blog and the comments sections would be monitored by an editor. However, most blogs do not have an editor now. Due to this, blogs can and have become a place for rivalries to take shape over controversial legal issues. Rivalries in the comment section have also moved to Twitter and other social media sites.

While some might say the blogosphere is slowing dying out, others argue that only the best blogs are still publishing. Whereas in the past everyone was posting with mediocre quality material, only the best law firms are posting today. Above the Law and SCOTUSblog are prominent examples. Staci Zaretsky, one of the writers for Above the Law, has a different viewpoint on the blogosphere. She says most people do not necessarily view blogs as blogs anymore, but more as sources of information. It has become a way for younger generations to learn the news. Lawyers often start off ambitiously with their blogs, but slowly lose energy and new information to talk about. Some lawyers say they simply run out of things to say, while other say it takes too much time and energy to post regularly. Kashmir Hill, a journalist from San Francisco, believes it is absolutely necessary to revive the blogosphere. As a journalist, she relies on a lawyer’s side of the story. She often turns to blawggers to find the legal implications of her stories and wants to see a rise in the number of legal blogs.

While we may not be sure about the future of law blogging, there is certainly an effort being made to revive the practice. Since more and more people are turning to law blogs as a source of news and information, it is important to have up-to-date and current blogs. An approach many lawyers are taking is listening to their clients and asking them about issues they want to know more about or care about. By taking this approach, bloggers become experts in the field. Hilary Bricken of Canna Law Blog says law blogging is “a very powerful tool in this advanced technological age.” We hope more young attorneys will be inspired to become law blawggers in the future.

Source: ABA Journal

Do lawyers have an ethical duty to replace hacked client funds? It depends.

Do lawyers have an ethical duty to replace hacked client funds? It depends.

The North Carolina State Bar released an ethics opinion regarding an attorney’s responsibility when a client’s money is stolen by a hacker. The ethics opinion, which did not address the legal liability of the attorney in such situations, focused on the attorney’s duties to maintain computer security. Attorneys should educate themselves about the risks of security banking and hire technology consultants for any advice. Staffers should be adequately trained on trust-account management and taking proper safety measures when it comes to client’s confidential information.

Attorneys have an ethical responsibility to replace the client’s stolen funds if the attorney’s failure to take safety precautions was the proximate cause of the trust account theft. In plain language, the attorney should replace the funds if the funds were lost as a result of the attorney’s mistake. The opinion provided a hypothetical scenario in which a lawyer carelessly wires money to a spoof email set up by a hacker. The lawyer had previously been told to contact the seller by phone before any transactions, but he did not bother to do that. As a result of the lawyer’s mistake, his client lost money. Instead of immediately wiring the money, the lawyer should have contacted the seller directly. By doing this, he might have found out about the hacker’s spoof email. In this case, the lawyer has an ethical duty to replace the funds.

Lawyers are advised to immediately notify their client of any stolen money and help them identify ways to cover the losses. The hope is that lawyers will be more careful with their client’s funds and take the best security measures to protect their client’s personal information. These ethical standards from the North Carolina State Bar are only standards and cannot be imposed on attorneys. There may not be a clear-cut answer on whether or not attorney’s should replace hacked client funds, but the State Bar has attempted to outline a set of ethical guidelines.

Source referenced: ABA Journal

Is your Smart TV spying on you?

Is your Smart TV spying on you?

Quick Recap

Vizio, a consumer electronic company known for its affordable televisions, recently came under fire for its data collection methods. A feature in the televisions, Smart Interactivity, collects information about the user’s viewing habits and remains active unless you opt out of it. Vizio then shares the data it collects with third parties, such as advertisers and content providers. However, Vizio argues they never shared any information that would lead the third parties to identify the user. It is important to note that Vizio does not consider IP addresses to be personal information.

Lawsuits

Two federal lawsuits were filed in California against Vizio in November of 2015, one in Northern California and the other in Central California. The suits allege that tracking violates CA consumer laws because private information is disclosed without permission of the viewer. While purchasers can opt out of the data collection, they are not provided with adequate disclosures on the information being shared about them in the time they did not opt out. Both lawsuits were mainly concerned with Vizio violating the Video Privacy Protection Act, which prohibits “any company engaged in rental, sale or delivery of audio visual content and not necessarily just video tapes—from divulging any personally identifiable information about its customer to a third party, except where the customer has clearly consented to such data sharing.” Vizio consumers never consented to the data sharing. In addition to Vizio being named as the defendant, the lawsuits also went after the company that provided the software to track users.

The new year brought good news for Vizio. Judge Beeler, in the Northern California lawsuit against Vizio, approved the order for the companies to use mediation to resolve their dispute. Since these lawsuits quickly became class action lawsuits, there are hundreds of thousands of people demanding answers from the television company.

With the majority of the televisions becoming smart televisions, we urge consumers to be careful in protecting their privacy. Not only are smart televisions capable of tracking your viewing habits, they can also track your cell phone number if that cell phone is connected to the same Wi-Fi as the television. While Vizio did not directly respond to the lawsuits, they continue to state that users can opt out of the Smart Interactivity feature.

Sources:

  1. ABA Journal
  2. TechHive
  3. Top Class Actions
  4. Northern California Lawsuit
  5. Central California Lawsuit
Are you hiring an Independent Contractor or an Employee?

Are you hiring an Independent Contractor or an Employee?

What is the issue?

Many employers treat their employees as independent contractors in an attempt to reduce their tax burdens. This misclassification has caught the attention of state governments and court systems across the nation. Illinois and New York have enacted strict laws imposing penalties on employers misclassifying their employees as independent contractors. Both states have task forces that are responsible for uncovering any misclassification in the construction industry.

Federal courts use an “economic realities” test to determine whether someone is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). Depending on the state, they may also use framework provided by the IRS to determine the hired individual’s status. IRS Publication 1779 looks at three categories to answer the crucial question: Behavioral control, Financial control, and the Relationship of the Parties.

1. Behavioral Control

This category of the IRS Publication 1779 focuses on how the work was performed and the level of supervision. Some other questions to consider when identifying your employee or independent contractor are:

  • Who has the right to supervise the work?
    • Employees are highly supervised, while independent contractors are rarely supervised.
  • Who provides the equipment or the supplies needed for the job?
    • An employee is provided with the tools necessary for the job, while the independent contractor brings his own supplies.
  • Can the individual hire helpers or “subcontract” the work?
    • An independent contractor is usually able to hire helpers.
  • Who controls the timing of when the work is completed?
    • Employers strictly control timing for their employees, but not for their independent contractors.
  • Are training or company procedures required to perform the work?
    • Independent contractors should not need any training to perform their job, while employers are expected to provide their employees with training. Employees should also be aware of company policies and procedures.

2. Financial Control

This second category focuses on the financial control within the relationship. It looks at how financially invested an individual is in the job. Here are some questions to consider:

  • Is the individual significantly invested in his/her work or are they just working for a paycheck?
    • Independent contractors are generally more invested in their work than employees, who only work for a paycheck.
  • Is the individual reimbursed by the employer for business expenses?
    • Employees are typically reimbursed, while independent contractors see business expenses as business costs.
  • Does the individual have an opportunity for profit or loss based on quality and/or quantity of the work?
    • The quality and quantity of the work done by independent contractors usually determines their profits or losses, but the same cannot be said for employees.

3. Relationship of the Parties

The last category of the IRS Publication 1779 focuses on the relationship between the individual and the employer. Some questions to consider when identifying the individual you are hiring are:

  • Is there a written contract between the individual and the company?
    • Independent contractors should have a written contract with the company.
  • Does the individual receive any benefits from the company?
    • Employees may receive benefits from the company, but the independent contractor only receives the consideration set forth in the written contract.

Although many states do not have strict laws enacted against misclassification, we recommend employers carefully consider whether they have hired an employee or an independent contractor. The financial ramifications of misclassification are significant. Not only can employers be held liable for unpaid minimum wages and overtime pay, they may also have to pay the employer’s portion of FICA contributions. We recommend using the IRS framework provided above to carefully consider whether you have hired an independent contractor or an employee to avoid financial penalties in the future.

Source referenced: JD Supra

Giving away your Trade Secrets to protect them?

Giving away your Trade Secrets to protect them?

California Code of Civil Procedure Section 2019. 210 is something to consider if you want to pursue trade secret litigation, especially if you are the one alleging the trade secret misappropriation. California’s Section 2019. 210 requires that the party alleging the misappropriation must identify the allegedly stolen trade secret “with reasonable particularity” before commencing discovery in litigation.

This may not seem as a problem right away, but imagine being in the following situation. Your company has three key trade secrets. One of your employees decides to leave your company and work for your competitor. She also takes a briefcase full of documents with her, but you do not know which documents she took. In order to sue the former employee and get any discovery in the case, you must identify those stolen trade secrets. Now, the question is whether you should give away all three trade secrets, or only two. What if you identify two trade secrets and the employee only had one? Clearly, the person alleging the trade secret misappropriation faces a lot of trouble.

On the other hand, Section 2019. 210 can be a powerful weapon to fight frivolous lawsuits and discovery requests. However, the key point here is that if you are looking to file a trade secret misappropriation case, you should probably consider other options before starting a lawsuit.

Source referenced: JD Supra