Sunday, January 31, 2016

US-EU Safe Harbor Deadline Passes Without A New Data Transfer Deal

According to The New York Times, United States (US) and European Union (EU) officials were unable to reach an agreement on an updated International Safe Harbor agreement before the January 31st deadline. The agreement covered how digital data (i.e. social media content, financial data, etc..) could be transferred between the continents.

The Safe Harbor Agreement that was implemented in 2000 between the US and EU contained principles that allowed companies (i.e. tech companies and other multi-national companies) to comply with EU data protection laws when moving data from Europe to the United States.  US companies that process and/or store individuals' data may self certify that they adhere to 7 principles that comply with the EU's data protection laws.

The 7 principles include:  notice, choice, onward transfer, security, data integrity, access, and enforcement.  The initial Safe Harbor agreement was meant to be an interim agreement; however, it lasted approximately 15 years.  A couple of years ago, EU and US regulators began negotiating an updated agreement to take into account how technology has changed over the years. Last October, before a new agreement was finalized, the current one was invalidated by the European Court of Justice via a compliant from Austrian privacy advocate Max Schrems.  Mr. Schrems gained publicity several years ago for his privacy advocacy that was highlighted in the documentary Terms and Conditions May Apply when he demonstrated how much data Facebook was collecting about each of its EU users.  

Now that the deadline has passed, what comes next?  According to The New York Times, the sides still have a lot of details to work out. Therefore, until a formal announcement is made it is premature to speculate on the next step.  As I told LAW360 the other day, businesses need certainty regarding transatlantic data transfers and if an agreement is not forthcoming companies will need a Plan B. 

If consumer groups file complaints as The New York Times indicated may occur, these issues may need to be adjudicated via the courts. At this point, uncertainty is the status quo and this may create unintended service disruptions for companies that transfer digital data between the continents. My hope is that an agreement is reached sooner rather than later that is flexible enough to account for future technology changes.  

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Thursday, January 28, 2016

How Much Is Your Data Worth To Facebook?

Facebook recently released its fourth quarter 2015 earnings and it demonstrated that the social media giant is hitting its stride.  It made an average of $3.73 off each of its users around the world.  However, in the United States and Canada, it made an average of $13.54 off each of its users.

What do these figures mean exactly?  Well, it demonstrates that there is value in the information you provide to Facebook in exchange to utilize their service.  Therefore, every time you provide Facebook information about your personal life (i.e. date of birth, marital status, kids, etc...), upload a photo, "like" a corporate page, etc...that is data that may be sold to data brokers, advertisers, and others.  There is tremendous value in your personal information.

Due to Facebook's very troubling privacy policy and data usage practices, I don't trust the platform with my personal data and/or my family's information.  I have limited personal information on my Facebook account with intentionally misleading content to protect my family's personal privacy and safety.  Your Facebook account may create tremendous legal problems for yourself and put you and your family's personal safety at risk so the value of your data should be a wake up call.

If someone wants to get in touch with me they can call me or email me.  Those who want to say hello know that poking me via Facebook will not get my attention.  It never has and never will.

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Friday, January 8, 2016

Ex-St. Louis Cardinals Scouting Director To Plead Guilty To Hacking

Accessing the digital accounts of others without their authorization may destroy your career and lead to prison.  Last year, the FBI began investigating the St. Louis Cardinals because it was alleged that one or more of their employees may have hacked into the Houston Astros internal computer network. 

According to The Wall Street Journal, Chris Correa, the former director of scouting at the St. Louis Cardinals plans to plead guilty to 5 of 12 hacking charges.  Soon after the investigation became public, Correa's employment with the Cardinals was terminated.  Why did Crorrea illegally access the Houston Astros internal network?  It appears that it was done for competitive reasons (i.e. money-winning the World Series can be very lucrative for an organization and its employees). 

Computer crimes is a growing industry and it will only increase as companies put their intellectual "crown jewels" in the cloud.  Therefore, it is imperative for companies to train their employees about cbyersecurity, cybercrime, and privacy to ensure their employees understand what they can and cannot do online.  Ignorance may lead to personal criminal penalties and corporate legal and financial liability. 

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Tuesday, January 5, 2016

Will Twitter's New Rules Lead To An NRA Account Suspension?

In order to post to most websites and social media platforms you click "I agree" to their terms of service.  In many instances the terms provide platform owners great flexibility on how to deal with visitors to their websites.  In other words, if you want to play in their sandbox you need to agree to their rules.

Earlier this week, The Washington Post reported that Twitter changed its rules at the end of last year in an attempt to limit harassment.  In particular, Twitter's new rules state:     

Any accounts and related accounts engaging in the activities specified below may be temporarily locked and/or subject to permanent suspension.
  • Violent threats (direct or indirect): You may not make threats of violence or promote violence, including threatening or promoting terrorism.
  • Harassment: You may not incite or engage in the targeted abuse or harassment of others. Some of the factors that we may consider when evaluating abusive behavior include:
    • if a primary purpose of the reported account is to harass or send abusive messages to others;
    • if the reported behavior is one-sided or includes threats;
    • if the reported account is inciting others to harass another account; and
    • if the reported account is sending harassing messages to an account from multiple accounts.
  • Hateful conduct: You may not promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or disease. We also do not allow accounts whose primary purpose is inciting harm towards others on the basis of these categories.
Earlier today, The New York Daily News reported that an NRA controlled Twitter account tweeted a message with the photos of two Brooklyn state lawmakers with bullets next to their photos.  This Tweet appears to have been in reaction to new legislation announced that would limit ammo purchases in the state of New York.  Does the Tweet referenced in The New York Daily News violate Twitter's new rules? 

Last year, the U.S. Supreme Court in Elonis v. United States stated that mens rea (intent) was required to be proven under 18 U.S.C. § 875(c) of the U.S. Code (federal law).  While the Elonis case focused on criminal prosecutions, it doesn't affect whether Twitter or other websites can make their own rules on how people may interact on their platforms.  Therefore, Twitter may at its own discretion decide to suspend the referenced account.

Copyright 2016 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Tuesday, December 29, 2015

UK: Social Media Domestic Abuse May Lead To 5 Years In Jail

In the United Kingdom, a new law has gone into effect that will enable prosecutors to go after domestic abuse perpetrators who harm their victims online.  Under this law, charges may be brought in domestic abuse matters where there is evidence of repeated controlling or coercive behavior.

Controlling or coercive behavior is defined as a continuing act or pattern of acts which are used to harm, punish, or frighten a victim.  Some examples of repeated controlling or coercive behavior may include: monitoring a person via online communication tools (i.e. tracking apps on mobile devices), or threatening to reveal or publish private information.

While its too early to speculate how this new law will be applied, it demonstrates that it is imperative to understand the legal consequences of your online interactions.  Controlling or coercive tweeting, snapping, pinning, or posting may lead to prison.  

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Monday, December 21, 2015

The EU's Push For Stronger Privacy Laws and Safe Harbor

Last week, the European Union took a step closer to enacting stronger digital privacy laws that will make it more challenging for companies to re-purpose the data they are collecting from their customers.  These new data protections would harmonize the privacy laws across the 28 members of the EU and stiffen the potential fines for violators up to 4% of a violator's global revenue.

The European Parliament and individual member governments still must pass the new proposals so it not certain that this is a done deal.  After all of the approvals have been obtained, the law may become effective within two years.

In general, I am in favor of strong industry self-regulation.  Unfortunately, this has not worked as hoped in the digital space.  Some companies are collecting massive amounts of personal information about their users and then utilizing the data for opaque secondary uses (i.e. selling the content to data brokers, psychological experiments, etc...).  Because of these non-transparent abuses, EU lawmakers felt it was time to act to reign in these practices.

Some positive aspects of these reforms provide users the right to know why they are being profiled, how they are being labeled, who is using their personal data, etc... This type of transparency will lead to greater accountability and hopefully lead to some companies changing their troubling privacy policies and data usage practices.  While it may be wishful thinking, I am optimistic that these new laws will convince U.S. law makers and regulators to push for some of these much needed reforms because there is little transparency in the data collection and usage industry.  

This latest push for stronger EU privacy laws coincides with the negotiation for an updated Safe Harbor data transfer agreement which may soon replace the previous one that was invalidated earlier this year.  In our digital dependent economy, participants need to be able to transfer data between continents in a timely fashion. Therefore, I am cautiously optimistic that an updated Safe Harbor Agreement will be finalized early in the new year because in our interconnected world it is imperative for businesses to have legal certainty.  

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved. 

Saturday, December 19, 2015

Homeland Security Will Vet Visa Applicants' Social Media

The Department of Homeland Security will soon expand its vetting of visa applicants to include social media.  This expansion appears to be in direct response to the recent terrorist attack in San Bernardino, California.  Surprisingly, there was a secret policy in place that banned officials from reviewing applicants' social media content.

If visa applicants urge their digital connections/followers to commit acts of terrorism against the United States and its allies online, it wouldn't surprise me if they would follow through with physical acts of violence if they are allowed to enter our country.  In response to these revelations about this secret policy to not review visa applicants' digital life lawmakers are demanding a change in policy

Will U.S. visa applications soon include requests for usernames/account names of all of one's social media accounts? Will applicants be required to provide access to their password protected accounts. Will increased scrutiny help make us safer? There are many unanswered questions as to how the actually vetting will occur.  

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved. 

Thursday, December 17, 2015

EU Backs Down On Proposal To Raise Social Media Age Limit to 16

In the EU, there was a recent proposal to raise the age limit for children to access social media platforms to 16 years of age absent parental consent.  The idea behind the bill was to help better protect the personal privacy and safety of children.  Banning kids from being able to do something will only make them more interested in subject.  As a parent, I witness this phenomena every single day.

After much deliberation, the EU decided against raising the age limit for social media access to 16 years of age absent parental consent.  EU member states will be free to set their own age restrictions between 13 and 16 years of age.  The debate surrounding this issue was extremely interesting because it demonstrates that law makers around the world are beginning to better understand the issues surrounding unfettered data collection and usage. 

Its importance to have robust conversations on data protection and personal safety issues. Every day, our world is becoming more complex as more personal data is being generated and utilized in ways previously never envisioned so there is a need for these types of continuing conversations.  

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.  

Tuesday, December 15, 2015

E.P.A.'s Secret Social Media Campaign Violated The Law

According to The New York Times, the Environmental Protection Agency (E.P.A.) engaged in an illegal covert social media campaign to back an Obama administration rule that was intended to to increase protections for our country's streams and waters according to the Government Accountability Office (G.A.O.).

The E.P.A. disputed the G.A.O.'s findings and an official with the agency stated, "[w]e use social media tools just like all organizations to stay connected and inform people across the country about our activities...[a]t no point did the E.P.A encourage the public to contact Congress or any state legislature."

Under the law, federal agencies may not participate in lobbying. The G.A.O. stated that the E.P.A. violated the federal Anti-deficiency Act which prohibits federal agencies from spending money without authorization.  Violating this act may lead to fines and/or jail time.  While its highly unlikely that anyone will be fined or sent to jail for these activities this should serve as a wake up call to government agencies because utilizing social media for illegal activities may create tremendous legal issues that can lead to fines and/or imprisonment.   

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Wednesday, December 9, 2015

Wyndam Settles FTC Data Security Charges

The FTC announced earlier today that Wyndham Hotels and Resorts has agreed to settle charges that the company’s security practices unfairly exposed the payment card information of hundreds of thousands of consumers to hackers in three separate data breaches.  The settlement requires Wyndham to establish a comprehensive information security program designed to protect cardholder data and to conduct annual information security audits and maintain safeguards in connections to its franchisees’ servers.

This settlement demonstrates that the FTC will go after companies that it believe do not have the proper data privacy and security protocols in place. Companies must be careful when determining what type of data they collect from their customers, how they will safeguard the information, and how long they utilize the information. In conjunction with a data collection and usage program it is imperative to have robust privacy and security audits.

The bottom line is that companies should bake privacy and security into their customer data collection and usage programs or they risk millions of dollars in potential legal liability.

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.


Monday, December 7, 2015

Canadian Cable Company Facebook Shames Late Paying Customers

There is a valid reason why people are "cutting the cord" and getting rid of their cable subscriptions.  Some cable companies don't have a clue about customer service.  In a very troubling report, Canadian cable company Senga Services has been publicly shaming on Facebook its customers who are in arrears.

Senga Services' behavior was deemed so troubling that Canada's Office of the Privacy Commissioner asked the company to delete its customer shaming Facebook posts.  Do any of the publicly shamed customers have potential legal claims under Canadian law?  What if some of the customers that Senga publicly shamed had a bona fide billing dispute that Senga refused to addressed?  What if some customers were not properly notified of the billing issue due to a move?

Earlier this year, I switched my cable company because I had a major billing dispute.  My now former cable company had lied to me for years and over charged me hundreds of dollars.  Only after I wrote multiple letters to the company and threatened to file FTC and state attorney general complaints was I finally refunded several hundred dollars.

My matter was most likely only settled by the cable company because I am an attorney who has the knowledge and means to easily utilize the proper judicial or regulatory process to obtain the money I was owed.  Most people don't have this luxury.

Companies should tread very carefully when utilizing social media to reach their goals.  Too often organizations empower employees and/or agents to act on their behalf online who don't understand that their digital actions may have legal repercussions.  The bottom line is that its imperative to think before you post.

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Friday, December 4, 2015

Mattel, Cybersecurity, Privacy, and Hackable Barbie

Barbie has been an All-American favorite since its introduction in 1959.  She has played a starring role in our popular culture for years; so much so that some girls have gone to great lengths to try to look like her.  The bottom line is that Barbie has become a mainstay in many homes.

For this holiday season, Mattel, the maker of Barbie created a version called "Hello Barbie" that is going to be able to be connected to the Internet.  Some privacy advocates such as the Campaign for a Commercial Free Childhood are very troubled by this new Barbie and have created a social media campaign called #HellNoBarbie because they have some major concerns about how the data being collected will be utilized.

A major problem with Hello Barbie is that parents may not always know when a particular conversation is being recorded by the doll and sent to Mattel's third party technology vendor. Pam Dixon of the World Privacy Forum pointed out to NBC News that the recordings could be utilized in divorce cases and custody battles.

Another issue is cybersecurity. Earlier today, it was reported that Hello Barbie has major privacy and security flaws that could expose the personal privacy and safety of our children. This is a very troubling report. Why didn't Mattel bake privacy and cybersecurity into the design of this toy?  Mattel isn't the only toy maker to have overlooked privacy and cybersecurity issues. VTech, a provider of electronic toys for children was recently hacked and exposed the personal information of millions of children.

The bottom line is that we are entering the era of the "Internet of Toys" where manufacturers may soon start trying to one up each other with how their products are connected online.  The problem is that is appears that many of the privacy and cybersecurity issues that are paramount to protecting the safety our of kids have not been made a priority in this rush for greater profits.

As a parent, I don't want or need my kids toys connected to the Internet. iPhones and Xboxes are meant to be connected online but Barbie, Ken, and GI Joe are not.  Parents must be able to easily control what is recorded about their family in the privacy of their home.  What happened to just being able to play with your kids and having a personal moment that is not shared with the whole world for eternity?

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Monday, November 30, 2015

Email Privacy Act: Much Needed Reform

In general, the government should be required to obtain a warrant in order to access the private password protected digital accounts of its citizens.  Unfortunately, due to an outdated law, the Electronic Communications Privacy Act of 1986 (ECPA) this is not the case.

The ubiquitous nature of online communications has made updating the law to account for how technology has changed over the past 30 years a necessity to ensure that our 4th amendment rights in the virtual world equal our 4th amendment rights in the physical world.  A Congressional hearing on the Email Privacy Act will be held this week to try to update the woefully out of date ECPA statute.  Multiple efforts over the years have failed so I am cautiously optimistic that this effort and others such as the LEADS Act which complement this bill will be passed this term.

The Email Privacy Act has more than 300 cosponsors in the House of Representatives and it would close a glaring loophole in ECPA which enables the government to utilize a subpoena instead of a warrant to require digital service providers to provide their customer's digital communications if they are greater than 180 days old.  When ECPA was enacted in 1986, this loophole wasn't concerning because our technology wasn't such that we could hold years of personal communications in an email account stored in the cloud around the world.

According to a recent poll by Vox Populi, 77% of 1000 registered voters said "a warrant should be required to access emails, photos and other private communications stored online." This super majority demonstrates the importance of this issue and that Congress should listen to the voters to rectify this glaring hole in our 4th amendment protections.

In order for the Email Privacy Act to became law, it is imperative to contact your local members of Congress to tell them about the importance of this issue.  Absent public support, Congress doesn't act. Therefore, if you believe that our 4th amendment protections should extend to our digital activities please take a stand and urge your representatives and senators to support the much needed Email Privacy Act.

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Tuesday, November 24, 2015

Towson University Locker Room Recording Scandal May Cost Millions

The Washington Post, has reported that a Towson University diving coach was indicted on criminal charges by a grand jury for allegedly utilizing a cell phone to tape record student-athletes inside of a women's locker room on campus.  According to Baltimore County Circuit records, Maureen Mead who is married to Pat Mead who is the head coach of the women's diving team has been charged with Interception of Communication, Peeping Tom, and Altering Physical Evidence.

These are serious crimes and its possible that after the facts have been uncovered that federal charges may be forthcoming.  It wouldn't surprise me if Towson University is sued for millions of dollars by the student-athletes who were recorded.  Last year, Johns Hopkins Hospital settled a lawsuit for $190 million dollars where a doctor had illegally tape recorded his patients.

How many other times did Maureen Mead tape record student-athletes in the locker room? Why were the recordings created in the first place?  How were these recordings re-purposed? There are a lot of questions that still need to be answered.  The bottom line is that it may be prudent for Towson University to set aside several million dollars to investigate and resolve this matter.  

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Tuesday, November 17, 2015

Emoji (and the law): The Oxford Dictionary Word of The Year

The Oxford Dictionaries have chosen "emoji" as the word of the year.  According to the Oxford University Press, the use of the word "emoji" has increased "hugely" this year so it was natural for it to become the word of the year.

An emoji or emoticon is a digital icon or image that may be used during electronic interactions to convey an idea or feeling. Utilizing emojis in text messages may be useful because they express a feeling or idea more quickly than a group of words. 

Emojis or emoticons have been slowly showing up in court over the past couple of years. There have been some cases where emojis have been introduced into evidence during trial. As more people utilize these images to convey thoughts or ideas the more these issues will need to be addressed by the judicial system.  

The bottom line is that before sending an emoji in a message or posting it online make sure you understand the legal ramifications.  

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.