Does GPS Tracking Count as a Search? Yes.

Does GPS Tracking Count as a Search? Yes.

Law enforcement agencies have become more aware of how technological advances can help them monitor and track suspects and criminals. The Supreme Court, however, has put a limit on what exactly counts as a “search” and how far authorities can go in tracking repeat offenders. Torrey Dale Grady, a repeat sex offender, was told he must wear a GPS ankle bracelet 24 hours a day so that he can be monitored by the North Carolina police. Grady said that since the device needed to be charged, he was required to sit next to a wall outlet for at least 4 to 6 hours per day. Grady unsuccessfully battled the ankle bracelet in North Carolina courts, but eventually made his way to the US Supreme Court. Grady claimed that the GPS ankle bracelet would be the equivalent of an unreasonable search and seizure, therefore violating his 4th Amendment rights. The Supreme Court was  interested in answering this question for once and for all.

In a unanimous decision, the Supreme Court agreed with Grady and said that if the government attaches anything to your body or your property, it counts as a search. Although the North Carolina Supreme Court had sided with its police authorities and said the ankle bracelet was perfectly legal, the Supreme Court sent the case back to the state’s highest court to be heard once again. Siding with Grady, the Supreme Court also mentioned precedents. One of the cited cases was US v. Jones, in which the Supreme Court had ruled that installing GPS devices in a suspect’s vehicle fell under the 4th Amendment search.

The Fourth Amendment and advances in technology seem to be in contradiction. It is expected that the Supreme Court will soon have to deal with the issue of whether geolocations from our phones are also protected under the Fourth Amendment. We will have to wait and see when such a case makes its way to the nation’s highest court. The concern about technology and surveillance is growing as more and more Americans purchase smartphones. This ruling will force lower courts to consider whether attaching a GPS tracker to someone is a violation of their constitutional rights. North Carolina was not alone in requiring repeat sex offenders to wear ankle bracelet. Wisconsin did the same thing, but both of these states and others will now be forced to reconsider their method of monitoring criminals.

 

Source referenced:

  1. Naked Security
  2. The Atlantic
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Protecting Social Media Contacts

Protecting Social Media Contacts

In this age of technology and social media sites, a new question is beginning to arise: Who gets the professional social media contacts when one of your employees leaves? This issue is especially relevant to LinkedIn. There are many employers that encourage their employees to create LinkedIn accounts to stay connected with clients and form more business connections. However, what happens when these employees leave and start working for a competing business? Do they get to take all of your valuable social media contacts to that competitor? The answer is not yet clear.

LinkedIn, as a part of its user agreement, says “If you are using LinkedIn on behalf of a company or other legal entity, you are nevertheless individually bound by this Agreement even if your company has a separate agreement with us.” There are no official laws on what happens to contacts after an employee leaves or is terminated, but the courts seems to be siding with the employees. After an employer took over a Pennsylvania woman’s LinkedIn account, the court said the woman had the right to own her social media profile. This can serve as a warning for many business owners to protect themselves before any lawsuits set a precedent for all employers.

Advice for Business Owners

Since there are no laws on this issue and we expect similar problems to arise in the future, here are some recommendations for business owners who have employees using social media sites for work purposes:

  1. Spell out your expectations for the use of professional contacts.
  2. If an employee receives personal contact information for a professional client, you may want to tell them to enter that personal information into the company’s database. This depends on the type of personal information and the specific circumstances.
  3. You may want to require employees to “disconnect” from their contacts if they plan on leaving your company. This should definitely be done if you know the employee is taking another job at a competitor.

We hope these tips and the information shared above can help our business clients protect their valued professional contacts. Although our legal system has not yet formally ruled on this issue, it is better if we are cautious about the steps we take. The tips listed above can be part of an employee handbook and should be reviewed with all employees, even those that have worked at your business for years. Helping our business clients protect themselves is our priority and we hope this post will be of value to you.

Source referenced: Entrepreneur

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
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
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

Legal Challenges with Online Reviews

Legal Challenges with Online Reviews

If you have ever bought something on Amazon or tried to find a new restaurant to eat at, one of the first things you probably did was read reviews and consider what other people had to say about the product or the restaurant. Turning to Yelp or the reviews section on Amazon is becoming an ordinary thing. People selling these products and business owners know the value potential customers place in their reviews and they are trying their best to keep customers happy or prevent them from writing negative comments. Some business owners are even willing to pay random people, who have never bought the product or visited their business, to write positive reviews. Robert Lee found himself in the middle of an online review lawsuit after visiting a New York City dentist.

The Incident with the Dentist

Lee visited Dr. Stacy Makhnevich at Aster Dental when he was in desperate need of treatment for his toothache. Before Dr. Makhnevich treated Lee, he signed a “mutual agreement to maintain privacy” contract which said he would not be able to comment about the services of the business. The dentist, according to the agreement, had a copyright protection and Lee would not be able to publicly comment on her services. Lee received his treatment and later realized he was overcharged. In addition, Dr. Makhnevich would not give him the dental records he needed to be reimbursed by his insurance company. Lee started writing negative reviews of the dentist on Yelp and other dental sites. When Dr. Makhnevich read the reviews, she demanded the online companies take the reviews down. She also sued Lee for copyright infringement. Lee fought back and aimed to invalidate her copyright claim. In the end, the U.S. District Court for the Southern District of New York said the privacy agreement was null and void. The agreement was found to be deceptive and Lee was awarded more than $4,700.

The reason dentists like Dr. Makhnevich and other business owners are so aggressive about their online image is because a 2015 survey by Mintel Group Ltd. showed that 54% of people read online reviews before purchasing goods or services. Harvard Business School found that adding even one star to a restaurant’s Yelp page can increase business by 5-9%. However, consumers are very intelligent and can be very suspicious of companies with only positive reviews. This should serve as a warning to business owners.

Freedom of Consumer Speech

Consumers have certain rights in the market and one of these rights is to speak their mind about the products and services they purchase. Since more and more business owners are including consumer gag clauses into their agreements, there are laws being put in place to protect consumer speech. Strategic lawsuits against public participation, or SLAPP suits, specifically spell out consumers’ rights to post negative, fact-based reviews. California’s Civil Code 1670.8 made the state the first in the nation to give consumers the right to post negative, honest reviews on Yelp. Congress is working towards passing a nation-wide law similar to California’s.

Companies like Amazon and Yelp are working with the FTC to make sure no fake reviews are posted online. The FTC also says consumers cannot be reimbursed in any way for writing positive reviews. Amazon and Yelp have even stricter guidelines and use “artificial intelligence to determine whether a review is legitimate and whether the poster and marketer have a connection.” Some authors on Amazon believe the company is being too strict by taking down reviews of people who received the book for free. Fans of the author are also not permitted to post reviews. A petition has been started by several authors to get Amazon to change its online book reviews policy. However, this effort seems unlikely to succeed.

Taking Fake Reviewers to Court

In 2015, Amazon named more than 1,000 John Doe users who created fake reviews. In an effort to provide customers with honest reviews, Amazon specifically shows “Amazon verified purchase” tags from consumers who bought the product. However, the problem of whether these people actually received the product and used it before reviewing it still remains. Many believe Amazon and other companies should not take their concerns over online reviews to the court because “the Communications Decency Act holds that an internet service provider can’t be held liable for something published by a third party—like a reviewer.” Amazon’s suit did lead to the shutting down of a few websites that sold reviews. Yelp filed a similar lawsuit against websites selling reviews and won by default when the defendant failed to show up to court. Both Amazon and Yelp agree that going to court is their last resort. They have practices in place to detect and stop fake reviewers before taking them to court.

New York Attorney General Eric T. Schneiderman has been working with Yelp and other companies to identify fake reviews. Many companies pay workers overseas $1-$10 per fake review, which is a violation of New York’s false advertising laws. A total of 19 fake review companies were identified and fined. Different states and the FTC are working together to stop these companies. The hope is that companies will come together to protect consumer rights and business owners will be more honest about their online image.

Source referenced: ABA Journal