Friday, July 15, 2016

Playboy Playmate Under Criminal Investigation For Snapchat Photo

According to Entertainment Tonight, the LA Police Department has opened an investigation into 2015 Playmate of the Year Dani Mathers' Snapchat activity after it received a complaint from LA Fitness. It appears that the investigation is centered around an alleged illegally disseminated private image Ms. Mathers took of a fellow gym member inside an LA Fitness club. While Ms. Mathers was in the bathroom/shower area of an LA Fitness gym she took a naked photo of another person and posted it on Snapchat with some negative comments.  

Subsequently, the naked photo Ms. Mathers posted went viral and she has gone from being the bully who body shamed a fellow gym member for personal pleasure to a target herself.    If the person in the photo comes forward Ms. Mathers could face up to six months in prison for her behavior.

Since Ms. Mathers published the naked photo, she has been suspended from her radio show and banned from all LA Fitness gyms.  Online, thousands of people have also stated how disgusted they are about Ms. Mathers' actions.      

Ms. Mathers' behavior demonstrates she didn't even realize what she had done was wrong. Her apology shows she doesn't have a clue about the law or proper digital behavior.  Ms. Mathers only apologized for posting the photo on Snapchat.  She admits in her so called apology that she had the intent to take the naked photo of stranger and share it with her friends.  This demonstrates a lack of remorse and understanding of the seriousness of the situation.

People have an expectation of privacy in bathrooms whether they are in a public restroom or a private club.  Those who violate this expectation of privacy should be held legally accountable. If Ms. Mathers is sued by the person whom she photographed I wouldn't be surprised if a settlement or judgement is either six or seven figures. The Erin Andrews jury verdict and subsequent settlement is the benchmark to measure these types of privacy violations.  

The bottom line is that companies need to better train their employees about these issues because one dumb Snap, Tweet, or Post can create millions in legal liability.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.

Thursday, July 14, 2016

Microsoft Wins Major Data Privacy Decision For Users

Microsoft won a major privacy legal victory for users today when the 2nd U.S. Circuit Court of Appeals ruled that the Department of Justice (DOJ) can't use a U.S. search warrant to access customer data stored overseas.  The unanimous 3-0 ruling is a victory for the rule of law, privacy, and the usage of new technologies such as the cloud.

The case started in 2013 when a New York federal judge issued a warrant for the emails of a drug trafficking suspect.  Some of the requested content was stored in Microsoft's computers in Ireland so the company refused to turn the data over unless the U.S. government followed well established international rules on obtaining evidence in a foreign country. 

In 2014, the U.S. Southern District of New York ruled that search warrants issued under the Stored Communications Act (SCA) enable the government to access data stored anywhere in the world. This ruling had affirmed a magistrate judge's decision that focused on who controls the data and not the location of the data.  The 2nd U.S. Circuit Court of Appeals unanimous ruling clearly demonstrates that the lower courts misinterpreted the SCA and Congress' intent on digital privacy.

During the past several years, I have attended numerous conferences and congressional hearings on the issues surrounding this case.  I have listened to many of the legal and public policy arguments as to why the lower courts' rulings must stand or be reversed. Today's ruling is a victory for privacy rights in the Digital Age, democracy, and technology public policy.  In short, the general legal protections that apply to the physical world have been extended to the digital world.

My hope is that other courts focused on similar privacy issues take notice of this decision and that Congress sooner rather than later enacts common sense data privacy laws for the Digital Age. The U.S. must be a leader in technology public policy and the 2nd U.S. Circuit Court of Appeals has taken our country a step in the right direction.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.     

Monday, July 11, 2016

Pokemon Go, Augmented Reality, and Legal Liability

Pokemon Go is the hottest mobile game sweeping the world.  It can easily be downloaded onto a mobile device and it incorporates the physical world into the virtual world.  In other words, its an augmented reality game.

Pokemon Go uses your phone's GPS and camera while you play the game.  In addition, Techcrunch has reported that the game wants permission to collect a tremendous amount of your personal information.  Generally, you should just say no to allowing for this type of personal data collection.  

While there are thousands of games that can be downloaded onto your phone this appears to be the first popular augmented reality mobile game that has gained international traction.  It has become so popular that criminals are utilizing it to rob and harm users.  According to published reports, at least 9 Pokemon Go users have been lured and robbed while using the app.

It may be a matter of when and not if a Pokemon Go user who has become a victim of one of these crimes sues the game's publisher for creating an "attractive nuisance" or some other type of tort.  Due to Section 230 of the Communications Decency Act it may be difficult for a potential Pokemon Go plaintiff to win a lawsuit based upon this or similar causes of action.

The bottom line is that users must understand the risks inherent when downloading and utilizing digital games.  Just because something may look harmless on your phone, that doesn't make it necessarily so.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Friday, July 8, 2016

Will Dallas Police Tweet Create Millions In Legal Liability?

Social Media has changed our society forever.  Our physical lives have become so intertwined with our digital lives that it is difficult to keep them separate.  Unfortunately, many people, businesses, government entities, schools, and other organizations still don't have a clue about the legal ramifications of every single Tweet, post, snap, livestream, etc...

During the past several days, we have had multiple terrible tragedies occur that were either streamed live on Facebook or posted online soon after the incidents occurred.  The facts surrounding the shootings in Minnesota and Louisiana where police officers shot and killed African-American men who may have been armed but not brandishing their weapons or acting in a menacing way are very troubling.  Due to the proliferation of cell phones and social media, footage of these incidents and/or aftermath have been viewed and shared millions of times around the world before the authorities have had the time to investigate what happened.  

Unfortunately, it appears that many government agencies do not understand the legal implications of social media.  A case in point is what happened in the aftermath of the terrible tragedy in Dallas where at least 12 police officers were shot and 5 tragically killed in a senseless attack on law enforcement who were at a peaceful protest for the shootings that occurred in Louisiana and Minnesota. According to multiple published reports, the shooter "wanted to kill white people, especially white officers".

In the chaos that ensued after the shootings, the Dallas Police Department Tweeted out a photo with the caption:  "This is one of our suspects. Please help us find him!"  Within hours of the Tweet, the person pictured in the photo had allegedly received thousands of death threats. This person ended up not being connected in any way to the Dallas tragedy and was just a person exercising his First and Second Amendment rights in a public street during a peaceful protest.  

I am not sure who on the Dallas Police Department published the irresponsible Tweet but it may create tremendous legal liability for the agency.  In 2013, The New York Post settled a lawsuit for inferring that a couple of innocent people were involved in the Boston Marathon terrorist attack. Seventeen years earlier, the 1996 terrorist bombing at the Atlanta Olympics made a pariah out of Richard Jewell after law enforcement carelessly leaked his name to the media as the prime suspect in that terrible attack.  

Since 2011, the Dallas Police Department has spent approximately $6 million dollars on lawsuit settlements.  Most of those settlements were related to police brutality and other misconduct issues. I am not aware of a case where the police department has created a a social media fire storm that put an innocent man's reputation and safety at risk.        

The bottom line is that organizations need to better understand the legal and societal issues inherent with social media.  This includes better policies, education, and training. Over the years, I have seen too many entities create bad policies and not hire the right people to properly advise, educate, and train their employees about digital issues.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Tuesday, July 5, 2016

Cheating Website Ashley Madison Investigated By FTC

Last year, the website Ashley Madison was hacked and the personal information of its users was uploaded online.  This wasn't just any website, it was one that catered to people looking to cheat on their significant other.  Subsequently, the company's CEO resigned and its revenues drastically decreased.  

Soon after the hack was reported, I stated that "it would not surprise me if the FTC became involved in the matter". It appears that the FTC has decided to investigate the company because according to Reuters it has opened an investigation into Ashley Madison's creation of fake female profiles or fembots to increase user engagement with its male customers.  Hiring companies that specialize in creating misleading daily active users (DAU's) or other metrics is such a common phenomena that on the season finale of HBO's Silicon Valley this issue became what appears to be an integral part of the series moving forward.  

There is a tremendous amount of fraud online because it is very difficult for perpetrators to be exposed and held accountable for their actions. The digital space is teaming with not just unethical companies but also "self described experts" that intentionally mislead others about their background and service offerings to build their reputation. 

While its too early to speculate on the focus of the FTC investigation, this should be a wake up call regarding trusting companies or "self described online experts" with your organizations' sensitive data.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Friday, June 24, 2016

Reputation Update: Florida Prosecutor Fired Over Facebook Comments

Last week, I wrote that Florida Assistant State Attorney Kenneth Lewis was suspended for posting online inflammatory messages about the city of Orlando in wake of the tragic nightclub terrorist attack.  Instead of being provided the opportunity to continue as a prosecutor he has been fired.

At the time of his suspension, his office stated, "Mr. Lewis violated the SAO9 social media policy. The social media policy was adopted and implemented on February 20, 2015, as part of SAO9’s code of conduct. Every employee is required to sign the policy. Failure to comply can result in discipline up to and including termination."  

Yesterday, the State's Attorney stated, "Whether you [Mr. Lewis] intended to convey that all those who attend nightclubs are animals (the zoo reference) or whether the reference to 'debauchery' was meant to express some objection to the lifestyle choices of those who attended this club, we will never know. I cannot believe that a man of your intelligence would not realize that your comment could bear that interpretation.....I can no longer defend you as a prosecutor free of bias. Therefore the recommendation of termination is also upheld. You shall remain on suspension until June 30, 2016 at which time your employment with this office will be terminated."  

The bottom line is just because you have the ability to post an opinion on Facebook doesn't mean that its a good idea to do so.  Therefore, the next time you hear a self styled social media expert/guru/ninja, etc... state how important it is to "be authentic" or "share more" online you know that that person doesn't know the first thing about social media, reputation, or the law.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.    

BREXIT Will Alter Technology Public Policy, Privacy, and the Law

The votes have been counted regarding the BREXIT which was the referendum on whether Great Britain would stay in the European Union or leave and the result is that the UK will exit the EU.  The vote to leave won by more than a million votes (52%-48%; 17,410,742-16,141,241).

In the short term, stock markets around the world are plunging due to the uncertainty. However, when the dust has settled the legal and regulatory work on how to adjust to this change in relationship will begin. While the vote will have a tremendous effect on many international issues, it appears that the UK's data protection rules may be unaffected.  In the short term, this appears so; however, in the long term this may change.

The vote was a surprise to many lawyers and technology public policy analysts and this is demonstrated by the lack of planning in the event that the UK voted to leave the EU. Will other countries follow the UK's lead and will this create new alliances? While current trade deals may not be affected by the vote, new rules and regulations will be needed and future trade deals involving the UK and the EU will need to account for this result.  

Change is generally hard.  The people of the UK have spoken and in a democracy the will of the people must be followed.  Even though it is too soon to speculate on how this vote will ultimately affect technology public policy and privacy issues there are a lot of unanswered legal issues surrounding the process in which the UK will leave the EU.

 Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved. 

Thursday, June 23, 2016

Restaurant's Reputation Harmed Over "Fatty" Receipt on Facebook

A Rhode Island restaurant recently fired one of its employees who identified a customer on a receipt as "fatty".  The former employee who was also the son of the owner is no longer allowed to eat at the restaurant or come onto the property. The owner immediately apologized for the incident and has tried to reach out to the upset customer to personally make amends. Unfortunately, after this matter has gone viral the owner is now receiving death threats and the incident has gone from local news to national news.    

There is no excuse for the now former employee to have identified the customer as "fatty". However, instead of first posting the receipt on Facebook why didn't the customer try to notify the manager about the situation? This incident will now be tied to not only the restaurant, the owner, and the fired employee, but also to the customer.  Not everything that happens to us needs to be shared and broadcast digitally for the entire world to see. The customer may now be forever tied to the term "fatty". 

The old adage that "sticks and stones may break my bones but names can never hurt me" still needs to be taught to our children because we live in a country that has strong protections against limiting the freedom of speech.  While name calling is childish and has no place in a professional environment, it happens.  How you respond to being called something that offends you goes into determining your overall reputation.

Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved.    

Wednesday, June 22, 2016

FTC Fines Advertising Network For Illegal Mobile Tracking

The Federal Trade Commission has announced that mobile advertising company InMobi will pay a $950,000 civil penalty and implement a comprehensive privacy program to settle FTC charges it deceptively tracked the locations of hundreds of millions of consumers, including children, without their knowledge or consent to serve them geo-targeted advertising.

According to the FTC, InMobi misrepresented that its advertising software would only track user locations when they opted in. However, InMobi was tracking user locations whether users opted in or refused to provide permission. InMobi's advertising network has a reach of more than one billion devices via thousands of apps so there is a staggering amount of data that the company has illegally obtained. 

Under the terms of its settlement with the FTC, InMobi is subject to a $4 million civil penalty, which is suspended to $950,000 due to the company's financial position. The company will be required to delete all information it collected from users and it is prohibited from collecting consumers’ location information without their affirmative express consent. InMobi must also institute a comprehensive privacy program that will be independently audited every two years for the next 20 years.

How much money did InMobi make by intentionally deceiving consumers?  This deception demonstrates why there needs to be stronger laws and greater enforcement mechanisms in place to deter and stop illegal behavior. 

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Saturday, June 18, 2016

Florida Prosecutor's Reputation Destroyed Over Facebook Comments

Be careful what you say online because it may come back to hurt you.  Unfortunately, too many people don't heed this advice and this time an attorney has forever harmed his reputation because of unprovoked online posts. Florida Assistant State Attorney Kenneth Lewis was suspended for posting online inflammatory messages about the city of Orlando in wake of the tragic nightclub terrorist attack.  His comments violated his employer's social media policy.

It appears that Mr. Lewis has been investigated for previously posting inappropriate online comments.  Just because you have a right to say something doesn't mean its a good idea to do so.  For years, people have felt less inhibited to attach their names to very incendiary online comments because its so easy to do so from the comfort of your own home.  Unfortunately, many people don't realize that comments meant for just friends or family may be seen around the world in just seconds.

Will Mr. Lewis be passed over for promotion because of this issue?  Will Mr. Lewis' online comments encourage his employer to terminate his employment for this or other behavior?  Will his online activities hurt his ability to transition to another employer?

In the Digital Age, it is imperative to understand how the Internet may help or harm your personal and professional reputation.

Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved.

Saturday, May 28, 2016

Doctors Yelp Review Responses May Create Millions In Legal Liability

The Washington Post has an interesting story about how some doctors and health care professionals are responding to negative reviews online.  In essence, it sounds as though some members of the health care profession are violating the federal Health Insurance Portability and Accountability Act (HIPAA) by providing very personal details about a patient's care in response to negative online reviews.  

While some people believe that HIPAA provides strong privacy protections to patients there is no private right of action allowed for an individual to sue  for a violation of the act.  One option is to file a HIPAA privacy complaint with the federal Office of Civil Rights (OCR).  Another option is review your state's medical privacy laws to determine if there is a state based privacy claim.  

In 2014, the Indiana Court of Appeals unanimously upheld a $1.44 million dollar claim against Walgreens for a state based medical information privacy action.  In that case, a Walgreens employee violated a patient's privacy by viewing a customer's prescription records and disclosing that information to a third-party.       

The bottom line is that doctor practices, hospitals, and other health care providers should have the proper policies in place and be trained about legal social media issues that may affect their practices. Just because a social media "expert"/"guru"/"ninja", etc.... may advocate responding to a negative online review you may want to get a second opinion from a lawyer who understands the legal, privacy, and reputation ramifications of doing so.  

Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved.

Friday, May 27, 2016

Teenager Sues Virginia Prosecutor Over Erect Penis Photo Demand

According to The Washington Post, a teenager who was caught up in a sexting investigation has sued a Virginia prosecutor for civil rights violations.  While the police were investigating sexting between two teenagers in 2014 they obtained a warrant to force the teenager to enable law enforcement to take photos of his genitalia. Fortunately, the public was notified of this ridiculous situation and the teenager was not required to take a photo of his erect penis for evidence.

This request created a major public uproar.  It sounded like those requesting the photos had been fans of the the 1980's movie Porky's when physical education teacher Ms. Balbricker asked the high school principal if he would sanction a penis (tallywacker) lineup of several students so she could identify which student stuck his penis through a peep hole in the girl's bathroom. Ms. Balbricker claimed that she could identify the offending student's penis because it contained a distinctive mole. In the movie, the request for the penis line up was denied. 

The detective who handled the case killed himself last year after being accused of molesting two young boys so this raises further doubts regarding the motive for photos of the teenager's erect penis.I initially wrote about the case in 2014 and stated, "My hope is that prosecutors and judges across the country realize that this is the wrong way to deal with sexting by teenagers."

The bottom line is that teenagers should be provided more education about these issues instead of outright punishment for these types of situations.

Copyright 2016 by Bradley S. Shear, Esq.  All rights reserved.

Sunday, May 1, 2016

NFL Draft Social Media Lessons For NCAA Schools & Student-Athletes

The 2016 NFL draft demonstrated why people need to become more educated about social media, digital privacy, reputation, and the law. Since starting this blog in 2009, I have been warning the public about the dangers associated with digital technologies and social media and how to protect yourself from becoming a star in a viral social media pr crisis.

Several minutes before the NFL draft started on Thursday, a video was posted on NFL prospect Laremy Tunsil's personal Twitter account that allegedly showed him wearing a gas mask and taking bong hits.  

While Mr. Tunsil is not the first college student who has admitted to trying drugs or drinking too much (i.e. President's Clinton, Bush, and Obama), he is the first to have had this information go viral right before he was expected to be drafted and earn millions of dollars.

This video allegedly cost Tunsil approximately $13 million dollars in salary and his agent $390,000 in fees.  It may have even destroyed Tunsil's marketability as a celebrity spokes person which could have earned him millions more and his agents hundreds of thousands of dollars in commission. This matter will go down as one of the most expensive digital mistake's on record.

This wasn't the only digital evidence of Mr. Tunsil's activities in college.  A short time after the bong video was posted, a text message exchange appeared on Mr. Tunsil's personal Instagram account that appears to demonstrate that his college program (University of Mississippi) was paying for some of his personal expenses which is an NCAA violation.


This post may lead to an NCAA investigation which could cost the University of Mississippi tens of millions of dollars.  Ole Miss may be forced to forfeit games Tunsil appeared in, lose scholarships, become ineligible for future bowl games, etc... Additionally, sponsorship revenue may decrease, and the university may be forced to spend millions in legal fees and compliance costs to investigate and defend their actions. Coaches and athletic administrators may also be fired because of this evidence.

Tunsil was obviously targeted because the hacker(s) acquired the digital evidence and struck at the most opportune time to inflict serious damage to his reputation.While it appears that multiple state and federal laws were violated, until the matter is fully investigated it is too early to determine what criminal and/or civil action may be taken.  

These types of issues will only increase in the future.  As I told The New York Times, "Its very challenging with these computer crimes because people can hide their tracks... Even if you find the person who hacked, can you even collect on the judgment?"

The bottom line is that education is the best way to protect against becoming a victim. When a crisis like this occurs, it is imperative to understand how to properly respond to ensure that your organization has its legal and pr ducks in a row to limit any damage to your reputation.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Monday, April 25, 2016

Erin Andrews Settles Multi-Million Dollar Internet Privacy Lawsuit

Earlier this year, Erin Andrews won a $55 million dollar privacy lawsuit against those whose actions and/or negligence resulted in a naked video of her being uploaded onto the Internet for eternity.  During her trial, the jury found that the hotel where she was video taped naked to be liable for approximately $26 million of the $55 million dollars in damages awarded.

According to The Tennessean, the hotel that was held to be negligent in protecting Ms. Andrew's privacy has settled its portion of the lawsuit.  While terms of the settlement are confidential, it wouldn't surprise me if Ms. Andrews settlement was between $15-$20 million dollars.  The settlement was reached before the judge was about to rule on whether the hotel could be on the hook for the entire $55 million dollars.

We may never know the exact settlement amount.  However, the bottom line is that Ms. Andrews will be naked on the Internet forever.  While Ms. Andrews has successfully persevered despite these circumstances, no amount of money will be able to permanently remove her online naked images and make things right.

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


Thursday, April 21, 2016

ESPN Fires Curt Schilling Over Facebook Post

ESPN fired Curt Schilling, a former major league baseball star after he made an offensive Facebook post.  This was not the first time that Schilling's social media behavior had gotten him in trouble; however, this post was the proverbial straw that broke the camel's back.  It showed a photo of a man that appeared to be dressed as a woman and stated, "LET HIM IN" TO THE RESTROOM WITH YOUR DAUGHTER OR ELSE YOUR'RE A NARROW MINDED, JUDGMENTAL, UNLOVING, RACIST BIGOT WHO NEEDS TO DIE!!!

Last year, Schilling was suspended from ESPN for an offensive Tweet that compared some Muslims with Nazis.  In that case, Schilling deleted the post and quickly apologized. However, during this social media crisis instead of apologizing for the post quickly he doubled down and defended it on his blog.  

Schilling has the right to voice his opinions. However, under his agreement with ESPN there is most likely a morals clause and under ESPN's social media policy it most likely enables it to fire him for making those opinions public on social media.  Most jobs in the U.S. are at-will meaning that employees may be fired for any reason or no reason at all that doesn't violate public policy (i.e. discrimination-age, race, gender, religion etc...) 

Schilling's reputation has taken a tremendous hit.  It is highly questionable whether he will be given another opportunity by a large media company to be a sports commentator.  It wasn't just one offensive social media post that did him in.  Schilling's cumulative comments online and offline and how he responded to them made it easy for ESPN to fire him.  

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