Western Union vs. Bitcoin

Western Union vs. Bitcoin

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Western Union was not happy when Bitcoin “released” an advertisement comparing itself to Western Union. The image above shows the parody ad that was posted on Bitcoin’s Facebook page. Western Union filed a claim against Bitcoin under the Digital Millennium Copyright Act (DMCA) saying Bitcoin had infringed on its trademark of the image. However, DMCA only covers copyright material, not trademarks. Facebook removed the image from Bitcoin’s News Page immediately and the man who originally posted the image, Dave Aiello, wanted to charge Facebook for deleting his image. It is not clear whether Aiello was the one who originally created the image, but he was the one to post it on Facebook and later share it on reddit. Facebook told Aiello they would restore the image to Facebook, unless Western Union takes legal action within 10 to 14 days.

Parodies are usually considered “fair use” under DMCA. In addition, companies rarely take legal action based on images or content posted on social media sites. This raises the question of why Western Union was so fast to take action against Bitcoin. One reason could be that Western Union feels threatened by Bitcoin’s rise in popularity. Another reason could be that Western Union simply wanted attention. If this spoof had not surfaced on social media sites, Western Union would not have gotten the attention it received. If they decide to take further legal action against Bitcoin, it just brings more attention to the company.

While we may not know the exact reason Western Union is making such a big deal out of a parody advertisement, it will be interesting to see whether or not the DMCA holds that parodies fall under the “fair use” doctrine. In addition, DMCA does not cover trademarks, which is what Western Union wants to sue for. This controversy brought attention to Bitcoin and their services. It would be a win-win situation for both companies at the end of the day in terms of media exposure, especially if Western Union is not able to formally file against Bitcoin.

Sources referenced:

  1. ARS Technica
  2. Coin Desk
Eavesdropping Explained

Eavesdropping Explained

As residents and citizens of California, everyone in the state enjoys the “inalienable right of privacy.”The California government has always taken privacy very seriously. In 1967, the state legislature passed an “Invasion of Privacy Act,” which outlined criminal penalties for invading another citizen’s privacy.

Today, Penal Code 632 makes it “a crime to use an electronic device to overhear or record a private conversation.” In order for eavesdropping to be a crime, the following elements are required:

  1. Must be intentional.
  2. Must take place without the permission of the parties to the overheard conversation.
  3. The conversation needs to be confidential. In other words, at least one party intended that no one else hear the conversation and expected privacy.
  4. Must involve the use of an electronic device, either to hear the conversation or to record it.

California has also acted quickly to protect cell phone and cordless phone calls. Penal Code 632.5 and 632.6 say intercepting “a call between two cell phones, two cordless phones, a cell or cordless phone and a landline phone, OR a cell phone and a cordless phone, with criminal intent and without the consent of both parties to the call” has the same penalties as ordinary eavesdropping.

Penal Code 632 Penalties

The penalties for eavesdropping can vary based on the accused individual’s record and the prosecutor. A prosecutor may try eavesdropping as a misdemeanor or a felony. If it is a misdemeanor, the accused individual can be fined up to $2,500, one year in county jail, or both. If it is a felony, then the accused can be fined $2,500 and/or sixteen months, two years, or three years in state prison. The maximum fine can be raised to $10,000 if the individual has a record of eavesdropping.

Not only can the accused face criminal penalties, an eavesdropper may also face a civil lawsuit. A victim of eavesdropping can sue for up to three times the damages they suffered or for $5,000, whichever is greater. Even if the victim does not suffer any economic damages as a result of the eavesdropping, he or she can still sue for up to $5,000.

Can you use information gathered through eavesdropping as evidence?

The answer to this question is no. Although gathering information by using an electronic device to eavesdrop may seem like a reasonable way to win a legal argument, you can face criminal charges for the eavesdropping. The evidence gathered through eavesdropping will not be admissible in a court of law.

When can you eavesdrop legally?

There are certain circumstances and situations where private citizens can eavesdrop legally to gather evidence. An individual can legally eavesdrop if he/she is one of the parties in the conversation and the person recording the conversation is collecting evidence because he/she believes that the other person is involved with the following crimes: extortion, kidnapping, bribery, any felony, or any annoying phone calls (Penal Code 653m).

You can also legally record a conversation with someone, without their permission, if you are seeking a restraining order against that person. This usually falls under the CA Domestic Violence laws and Penal Code 273.6. These recordings would be admissible in a court of law.

Wiretapping

CA Penal Code 631 prohibits wiretapping. While eavesdropping and wiretapping are similar crimes, wiretapping is “the act of intercepting and listening in on phone conversations by using a machine to ‘tap’ into the phone line over which they take place.” Eavesdropping is only listening in on the conversation. Similar to eavesdropping, the penalties for wiretapping depend on whether the crime is tried as a misdemeanor or a felony.

Eavesdropping and Wiretapping by Law Enforcement

Interestingly, most citizens are not concerned about other citizens eavesdropping on their private conversations. They are more concerned about the government listening to them. The 1967 Invasion of Privacy Act made it very clear that eavesdropping laws did not apply to law enforcement officials. In addition, any evidence they gather by eavesdropping is accepted in court.

However, this does not mean law enforcement officials can listen in on your private conversations whenever the want to. If they want to wiretap your phone or intercept your calls, they must get a court order. Authorities are usually able to get court orders for the following crimes: serious drug crimes, murder or solicitation of murder, kidnapping, and terrorism. They must also convince the judge that other investing procedures have failed and wiretapping and eavesdropping are a last resort.

For Americans today, eavesdropping has become a serious issue with the rise of terrorism. We hope this analysis of eavesdropping laws in California has provided you with more information on illegal and legal eavesdropping. Our goal is that a more thorough understanding of eavesdropping laws in California will better protect our clients and businesses.

Source referenced: Shouse California Law Group

Google vs. Oracle: A Copyright Battle

Google vs. Oracle: A Copyright Battle

Google had a major victory on May 26, 2016 when a jury threw out Oracle’s $9 billion claim against them. The battle between the two technology giants started in 2010 when Oracle claimed that Google needed a license to use its Java programming language for its Android phones and technology. Oracle claimed that since Google had earned over $20 billion in profit by selling its Android phones, they deserved $8.8 billion in damages and $475 million in lost licensing revenue. In 2014, a Federal Appeals Court had ruled in favor of Oracle saying that the company had a valid copyright over its coding language. The Supreme Court declined to hear this appeal.

In the latest round of the case, which was heard in California’s Northern District Federal Court in San Francisco, the jury concluded that Google did not infringe on Oracle’s copyrights with its Java language. Throughout the hearing, Google said they had used Oracle’s API language to innovate new technologies, not copy their software. Experts say that Google relied on a “free-market” argument to win.  Oracle says they are planning to appeal the jury’s decision, but legal experts say it would be very difficult to reverse the decision in favor of Oracle.

What does this verdict mean?

This verdict has allowed many technology companies to breathe a sigh of relief. Google’s win gives other companies reassurance that they will be able to use common methods of software technology without infringing copyright claims. In other words, software can be widely used by many companies without starting a legal battle. However, some experts say Google won the case because of the vast amount of resources at its disposal. They say it is likely that a smaller company would have lost against Oracle.

The issue of whether Oracle’s coding deserved copyright protections is highly debated. While some are glad to see Google’s victory, others are concerned about what constitutes copyright protections. This case did not set any legal precedent because fair use rulings are made on a case-by-case basis. If Oracle decides to appeal the decision, one of the only ways they will be able to do so would be by saying that jury instructions on the legal issues were flawed. Whether or not Oracle appeals, and on what basis, is something we have to wait to see. While the impact of this ruling may not be felt yet, legal experts say similar rulings can have a “chilling effect” on developers.

Sources referenced:

  1. Bloomberg Technology
  2. The Verge

 

Round 2: Facebook under fire once again, but this time for scanning private messages

Round 2: Facebook under fire once again, but this time for scanning private messages

In a previous post, we discussed the lawsuit filed against Facebook in Illinois for its facial recognition technology. Surprisingly, Facebook is under fire once again for its data collection methods. This time Facebook may have violated federal privacy laws by scanning user’s private messages. A class-action lawsuit was filed on May 18, 2016 against the social media site. The suit claims that Facebook was scanning and logging URLs sent through its private messaging system. The plaintiffs claim Facebook scans these URLs to better advertise to its users by providing more user-targeted ads. Facebook has said they engage in the practice of scanning URLs for anti-malware protection and to comply with industry standards on child pornography searches. The company also said URLs are scanned in bulk and that URL data is anonymous. This statement originally made it seem like Facebook would not be able to come up with user-targeted ads by scanning private messages. However, the company later said they may have also used their scanning for advertising purposes and to boost “like” counts.

If Facebook did use their system to better target users with their advertisements, the social media giant may have violated the Electronic Communications Privacy Act and the California Invasion of Privacy Act. Attorneys for the plaintiffs’ were able to gain an abundant amount of information about the site’s data collection methods, but there were some exhibits that were still sealed. After engaging in the discovery process, the plaintiffs’ attorney said “the records that Facebook creates from its users’ private messages, and which are stored indefinitely, may be put to any use, for any reason, by any Facebook employee, at any time.” This statement definitely would shock Facebook users and may be the reason Facebook is aggressively fighting the lawsuit.

Facebook continues to argue that their users remain anonymous after their private messages are scanned. The plaintiffs completed a technical analysis on their own to disprove Facebook’s claims and they were successful. The analysis showed that Facebook collected the date, time, content, sender, and recipient of each private message. Attorneys for Facebook said they were”speculative” of this analysis.

Although the plaintiffs may succeed in their lawsuit against Facebook, they should not expect any monetary damages. The court ruled that Facebook can be prohibited from scanning private messages in the future, but the company would not be required to payout the plaintiffs because the company’s  conduct did not result in actual harm. Everything shared on Facebook is often shared on purpose, but users should have been able to expect privacy when sending private messages. The plaintiffs filed an amended complaint. Facebook continues to hold its position that it never aimed to compromise the security or identity of its users to third parties.

Source referenced: The Verge

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