Wednesday, November 26, 2014

Twitter's App Graph Privacy Fail Whale: Will The FTC Investigate?

Wishing everyone a Happy and Healthy Thanksgiving!  Before leaving the office for the Thanksgiving Holiday, I noticed that Twitter has made a troubling announcement about its privacy practices moving forward for its iOS and Andoid users.  According to the Wall Street Journal, "Twitter is now collecting information about the apps installed on users’ devices in order to better target and tailor advertising and other content to them."

Twitter announced, "[t]o help build a more personal Twitter experience for you, we are collecting and occasionally updating the list of apps installed on your mobile device so we can deliver tailored content that you might be interested in."

Mashable has reported that, "[o]nce the update goes live, users are automatically opted-in to the tracking, though Twitter will notify users within the app once it starts and you can opt out at any time. Twitter notes that it is only tracking a list of the apps users have downloaded and is not accessing any data within those apps."

In general, most digital and social media platforms are not built with privacy by design in mind.  For example, Facebook and Google are notorious for their very troubling privacy policies and practices which demonstrate that user privacy is an afterthought for these companies.  

It is none of Twitter's business what apps I have uploaded on my mobile device.  Period.  End of story.  Twitter has a right to monitor the apps I have connected to their platform; however, it has no right whatsoever to automatically know what apps I have downloaded onto my mobile device just because I have downloaded its app.  Under no circumstances should this be opt-out. This is a very troubling issue that may lead more apps to do the same thing. 

During the past couple of years, the FTC has published multiple reports on the troubling privacy practices of some mobile apps and ecosystems.  Does Twitter even have the legal right to automatically opt-in users for this program?  Since this was announced right before Thanksgiving, it leads me to believe that Twitter may be trying to bury this troubling matter right before a holiday weekend.  Will the FTC soon open an investigation into this issue?     

The bottom line is that Twitter and other digital companies should make their defaults opt-in.  Opt-out defaults are a threat to personal privacy and safety.  I am fully aware of the corporate monetary reasons for automatic opt-in.  Wall Street has been disappointed with Twitter's revenue performance and recently punished its stock so this automatic opt-in to the App Graph may be an attempt to increase the corporate bottom line.   

If Twitter and other social/digital media companies such as Facebook and Google want me to trust them with my personal and/or corporate data they need to make privacy a priority and not an afterthought.   

Copyright 2014 by Shear Law, LLC.  All rights reserved.

Monday, November 24, 2014

Supreme Court To Decide Groundbreaking Facebook Free Speech Case

In general, it takes the Supreme Court years to address an issue and by the time a matter is resolved the technology utilized in the case may be obsolete.  For example, in 2010, the Supreme Court ruled on a sexting and workplace privacy case (City of Ontario, California et al v. Quon) that began in 2002.  By 2010, many employers had switched from providing pagers to smartphones to communicate with some of their employees.  While technology had greatly changed during those 8 years, the underlying issues litigated were and still are very relevant today. 

A new case before the U.S. Supreme Court may determine when does a social media threat cross the line and violate the law.  According to The Washington Post,  the court will decide "whether violent images and threatening language posted on Facebook and other social media constitute a true threat to others or simply [the] protected rants..."

The basic facts of the case are that a man was sentenced to approximately 4 years in prison (and served the sentence) for posting allegedly disturbing messages on Facebook about his estranged wife, co-workers, and law enforcement.  It appears that some of the people who viewed the man's Facebook messages were concerned for their personal safety and/or the safety of others so the appropriate authorities were made aware of the situation which led to the matter ending up in court. 

With more and more communications occurring online, this case has the potential to radically change how we utilize and communicate as a society.  This case also may change how the law views First Amendment protections in the Digital Age.

The Supreme Court needs to strike the right balance between protecting our First Amendment rights and public safety.  What should the test be when determining whether social media speech violates the law?  Should the test be how a reasonable person may view the postings or should the test be whether a person has the intent to follow through with the online threats?

My hope is that Supreme Court creates a framework that properly weighs First Amendment rights with public safety that may be easily applied to similar situations in the future.   While this case may be the first major social media freedom of speech matter that is decided by the high court, I doubt it will be the last. 

Copyright 2014 by Shear Law, LLC.  All rights reserved.

Saturday, November 15, 2014

Britain Jails First Revenge Porn Perp

According to The Guardian, the UK has jailed its first revenge porn perpetrator.  Luke King, 21 has been jailed for posting revenge porn online.  He was given a 12-week sentence after pleading guilty to online harassment.

It appears that Mr. King had published naked photos of a woman on WhatsApp earlier this year after threatening her.  On October 13, 2014, I discussed that the UK was set to criminalize revenge porn because it is a growing problem not only in the UK but also around the world. 

While a 12-week sentence may not sound like much for harassing someone online, it may make someone think twice before posting compromising photos of others in the future.  It is too soon to speculate whether the UK's new revenge porn law is a strong enough deterrence.

The law is constantly trying to catch up with technology so it doesn't surprise me that this may be the first case in the UK where someone was jailed for uploading revenge porn.  A major challenge with revenge porn is the likelihood of needing to play a game of whack a mole to remove it from the Internet.  Once content is posted online it is extremely difficult for it to be permanently removed. 

Copyright 2014 by Shear Law, LLC.  All rights reserved.

Monday, October 27, 2014

California Highway Patrol Nude Photo Theft Scandal May Create Hundreds of Millions In Legal Liability

The Contra Costa Times is reporting that a California Highway Patrol officer has been "accused of stealing nude photos from a DUI suspect's phone" and "that he and his fellow officers have been trading such images for years."  This behavior is not only very troubling, it may violate multiple federal and state computer theft laws and may even trigger California's revenge porn statute

The Contra Costa Times further states, "[i]n the search warrant affidavit [for the matter], senior Contra Costa district attorney inspector Darryl Holcombe wrote that he found probable cause to show both CHP officers Harrington and Hazelwood and others engaged in a "scheme to unlawfully access the cell phone of female arrestees by intentionally gaining access to their cell phone and without their knowledge, stealing and retaining nude or partially clothed photographs of them."

This alleged behavior demonstrates why the Riley v. California case is so important.  In that matter, the U.S. Supreme Court held 9-0 that the police generally need a warrant before searching cell phones and electronic devices of those arrested.  All of the facts of this case have not yet been proven so it is difficult to determine exactly in what manner the victims had their phones searched and their personal images stolen and forwarded to others.

Johns Hopkins Hospital recently paid $190 million dollars to settle a matter where a doctor had taken thousands of nude photos of patients without their consent.  In that case, there was no evidence the photos had been shared.  However, in this case, court documents allege that images had been shared.  Therefore, the Johns Hopkins Hospital $190 million dollar settlement may be a benchmark for any potential settlement. 

In general, many organizations need to do a better job of training their employees about digital usage and legal matters.  Here, since those who are accused of wrong doing are police officers they should have known that their alleged behavior may violate multiple state and/or federal laws.  

Copyright 2014 by Shear Law, LLC.  All rights reserved. 

Friday, October 17, 2014

TV Show Scandal Sex Tape Episode and Sextortion

The TV show Scandal contains the type of story lines needed for a successful television program:  sex, scandals, beautiful people, politics, power, money, etc....  According to Wikipedia, the plot centers around, "Olivia Pope (Kerry Washington) [who] is a former White House Communications Director for the President of the United States who has left to start her own crisis management firm, Olivia Pope & Associates. Olivia has decided to dedicate her life to protecting the public images of the nation's elite but is finding that no matter how hard she tries, she cannot leave parts of her past behind."

Last night's episode centered around the President's daughter slipping her Secret Service detail and doing drugs and creating a threesome sex tape with a couple of boys/young men she has never met before having sex with them.  Olivia Pope's team was called into action and asked to do what was necessary to delete the photos and avoid a scandal for the First Family. 

Olivia's employees utilize social media and what may be considered NSA tactics combined with good old fashion detective work to track down the boys/young men who had sex with the president's daughter and then filmed it.  As the episode progresses, it appears that the president's daughter was targeted because the parents of one of the boys/young men demand $2.5 million dollars to turn over all copies of the embarrassing sex tape. 

The fictional parents live near my office in Bethesda and sound as though they were already very well off.  After Olivia has received the authority to pay $2.5 million dollars to ensure that the video and all copies are destroyed, the parents demand an additional $500,000.  This angers Olivia and she turns the tables on the black mailers and threatens to ruin them due to their despicable behavior.  The bottom line is that the sex tape is destroyed and it appears that no blackmail money was paid. 

Digital black mail has been a troubling growing trend.  As USA Today reported earlier this year, the crime of sextortion against children is an epidemic.  Once content has been put into a digital format, texted, and uploaded to the cloud it is very difficult to delete.  Even technology experts are not sure if content uploaded online can be deleted.

While Scandal is a fictitious television program, some of the story lines are based upon real events.  Not everyone has the resources available to clean up a sex tape incident.  Even celebrities who may have the money to make a sex tape "disappear" are unable to protect themselves from a sex tape scandal.

The bottom line is that it is imperative to protect your privacy at all times.  You never know who may use their cell phone or other digital device as a digital extortion weapon.

Copyright 2014 by Shear Law, LLC.  All rights reserved.

Thursday, October 16, 2014

Will The FTC Soon Investigate Whisper For Deceptive Privacy Promises?

Will the Federal Trade Commission soon investigate the app Whisper for false and misleading privacy promises?  The Guardian recently reported some very troubling allegations about Whisper that if true lead me to believe that the app may soon be contacted by the Federal Trade Commission to fully explain the matter.

According to The Guardian, Whisper "is tracking the location of its users, including some who have specifically asked not to be followed."  This may be a violation of Article 5 of the FTC Act regarding unfair and deceptive trade practices.  Earlier this year, the FTC alleged that Snapchat, "deceived consumers over the amount of personal data it collected and the security measures taken to protect that data from misuse and unauthorized disclosure....According to the FTC’s complaint, Snapchat made multiple misrepresentations to consumers about its product that stood in stark contrast to  how the app actually worked."

Whisper's actions after learning that The Guardian was about to publish its story are very disturbing.  For example, according to The Guardian, after learning about the upcoming story Whisper rewrote its terms of service to "explicitly permit the company to establish the broad location of people who have disabled the app’s geo-location feature."   In addition, The Guardian reported that Whisper recently changed its privacy policy from it “is committed to protecting your privacy and the security of personally identifying information” to “our goal is to provide you with a tool that allows you to express yourself while remaining anonymous to the community."

Whisper's terms of service and privacy policy govern its relationship with its users.  Whisper's response to The Guardian's allegations do not appear to address why its terms of service and privacy policy were changed.  Are these changes an acknowledgement that Whisper has been making unfair and deceptive privacy promises about its app?

Copyright 2014 by Shear Law, LLC.  All rights reserved.

Monday, October 13, 2014

United Kingdom To Criminalize Revenge Porn

Revenge porn has been universally described as the distribution of private sexual images of a person without their consent with the intention of causing harm.  Holding those accountable who are behind revenge porn has picked up steam over the past several years.  For example, earlier this year the person referred to as the Revenge Porn King was indicted on federal charges stemming from his now defunct website,  In addition, multiple states across the U.S. such as Maryland have enacted laws to punish those behind this troubling behavior.

While posting naked photos of others against their will is reprehensible, there may be some constitutional protections for the perpetrators.  For example, the new revenge porn law in Arizona may be overly broad and this may chill free speech.  The key is to enact a narrowly tailored law that has actual teeth to protect while not infringing on the First Amendment.    

The United Kingdom does not abide by the U.S. First Amendment so it may be much easier to enact a stronger revenge porn statute than any U.S. state (or the Federal Government).  The UK is poised to criminalize revenge porn and according to the UK Ministry of Justice Press Release, [i]t [the law] will mean that images posted [revenge porn] to social networking sites such as Facebook and Twitter will be caught by the offence, as well as those that are shared via text message. Images shared via email, on a website or the distribution of physical copies will also be caught. Those convicted will face a maximum sentence of 2 years in prison.....The offence will cover photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public....Those found to have committed a sexual offence can continue to be prosecuted under existing legislation, which can lead to sentences of up to 14 years in prison."

For years, ""/The Internet has been thought to mean the "Wild Wild West".  This new law in the UK may deter some people from engaging in behavior that may be deemed revenge porn.  While this law may be a step in the right direction, it will be interesting to see how it is applied.

Copyright 2014 by Shear Law, LLC.  All rights reserved.

Tuesday, October 7, 2014

Significant Tech Players Absent from Student Privacy Pledge

According to The New York Times, the enactment of a new California student privacy law  (SB 1177) that restricts how "education technology companies can use the information they collect about elementary through high school students" has led "a group of leading industry players...[to] pledg[e] to adopt similar data protections nationwide."  Some of the companies that have agreed to sign the pledge include: Amplify, Edmodo, Houghton Miflin Harcourt, and Microsoft.

The Pledge is a positive step in the right direction.  Representatives Jared Polis of Colorado and Luke Messer of Indiana worked with the Future of Privacy Forum and the Software & Information Industry Association on this important bipartisan matter.  According to, The Pledge will make clear that school service providers are accountable to:

• Not sell student information
• Not behaviorally target advertising
• Use data for authorized education purposes only
• Not change privacy policies without notice and choice
• Enforce strict limits on data retention
• Support parental access to, and correction of errors in, their children’s information
• Provide comprehensive security standards
• Be transparent about collection and use of data

This initiative is an acknowledgement that some education technology providers are intentionally putting student privacy and safety at risk due to invasive and non-transparent data mining and student profiling practices.  Education Week and Politico's in-depth investigative reports on the industry demonstrates the need for greater accountability, transparency, and regulatory enforcement to protect our children.  

Apple, Pearson, Khan Academy, and Google's absence from this initiative is very concerning.  Several weeks ago, Apple took a shot at Google regarding Google's privacy policies and data mining/profiling practices.  This occurred soon after email evidence was uncovered that appear to indicate major improprieties during the contracting process that awarded both Apple and Pearson multi-million dollar educational technology contracts in the Los Angeles Unified School District.

Politico's student data mining report found that Khan Academy students allegedly trade their privacy for free tutoring.  Only after Politico "inquired about Khan Academy’s privacy policy, which gave it the right to draw on students’ personal information to send them customized advertising," was the policy "completely rewritten."   

Google's refusal to sign the Pledge is most troubling because it may indicate it is still scanning student emails for advertising purposes and it creates student profiles for non-educational commercial purposes.  Soon after Education Week reported that Google was scanning student emails for advertising purposes, Google publicly announced it would stop the unethical and illegal practice; however, it refused to state whether it was creating student profiles for commercial and/or other non-educational purposes.    

When Education Week contacted Google last week about its position on California's new student privacy law, Google declined to clarify whether it scans student email messages sent using its Apps for Education platform to build student user profiles that may be utilized for non-educational commercial purposes.  Google's refusal to emphatically deny it scans student emails to create student user profiles may indicate that it is violating the 2011 FTC-Google Buzz Agreement, and/or its 2013 multi-state Attorney Generals Street View Project Agreement. 

As The New York Times stated, "although the pledge is not legally binding, companies that violate their own public representations on privacy could be subject to enforcement actions by the Federal Trade Commission."  Google's refusal to sign the industry backed Pledge appears to be an acknowledgement that if it signs the Pledge it will be in violation of Article 5 of the FTC Act regarding unfair and deceptive trade practices.  In 2012, Google paid a $22.5 million dollar record FTC fine for misleading users about its privacy practices regarding the scandal known as the Apple "Safari Hack" because it had violated its 2011 agreement not to mislead consumers about its privacy promises. 

Google's lack of transparency on student privacy issues and its refusal to participate in an industry backed student privacy initiative that was created by two organizations it supports should be of great concern to any parent whose school has adopted Google Apps For Education.  According to Google's Apps For Education website, it has a massive footprint in the education space.  More than 30 million students, faculty members, and staff utilize its platform.  

Unfortunately for education users, their privacy is still governed by Google's standard Consumer Privacy Policy that allows for all emails and metadata collected to be data mined to create user profiles for non-educational commercial purposes.  The Consumer Privacy Policy that covers Google's educational offerings is the same one that a German data protection authority (privacy regulator) recently ruled violates EU data protection (privacy) laws.  Shouldn't U.S. school children be afforded the same privacy protections as German citizens?     
When will Google come clean and be transparent about its past and present student data collection practices?  Some questions that Google still needs to answer include: 

How long was (is) Google scanning student emails for advertising and/or other non-educational  commercial purposes? 
Were the parents or legal guardians of students who had their emails scanned for advertising/commercial profiling purposes provided notice and did the parents or legal guardians respond by giving written consent to allow their children's personal information to be utilized for advertising and/or other non-educational commercial purposes?   
How many students had their emails scanned for advertising and/or non-educational commercial purposes?  
Has Google deleted all the emails and associated metadata that was scanned for advertising and/or other non-educational commercial purposes?  If so, when?  
Is Google data mining students to create user profiles? If so, why and how many students is it profiling?  

As a parent, lawyer, and user of Apple, Pearson, Khan Academy, and Google's products/services, I am very troubled by their refusal to sign an industry created Pledge to better protect student privacy.  If these companies are not willing to change their data collection and usage practices, their privacy policies, and agree to the sign the Pledge can we trust them with our children's most personal information?

Copyright 2014 by Shear Law, LLC All rights reserved.    

Monday, October 6, 2014

Titan has installed hundreds of advertising beacons around NYC

Buzzfeed is reporting that the New York City government has allowed outdoor media company Titan to install hundreds of advertising beacons (small radio transmitters that may be used to track  people's movements) in pay phones around the city.  Beacons may be utilized to track your movements via cell phone for not just behavioral advertising, but also for nefarious spying purposes that may put cell phone users in harms way.  Interestingly, there has been no public notice about this program so all the facts are hard to come by.  

When this type of technology is deployed in a public space without the community's input it is very troubling.  After hearing about this new program, the New York American Civil Liberties Union Executive Director Donna Lieberman denounced it.  As a former New Yorker and regular visitor, I am very concerned about this development.

Should Titan (or any other company) have been allowed to install these beacons on public property in the first place?  Should Titan be required to publicly list (i.e. transparency) where each of its beacons are located?  Should Titan be required to place large signs next to their beacon locations so those who walk nearby are notified of this program?  Will consumers who have been tracked by Titan without their knowledge or consent soon sue Titan or New York City for breaching their personal privacy?  These are legitimate questions and concerns that require a national conversation. 

For those who are care about their personal privacy and security, now is the time to stand up and be counted before it is too late.


According to Buzzfeed, New York City has asked Titan to remove its beacons from city owned property and this may occur in the next several days.  This 180 demonstrates the power of social media because within hours of this matter being reported on by Buzzfeed the beacons in question are planning to be removed.

Will Titan be required to answer the following questions:  What type of data did its beacons collect on public property?  From how many people did Titan's beacons collect information from? How much data did it collect?  Will Titan delete all the data it has collected on public property? What were the start dates and what will be the exact end date of this program?  For New York City, who authorized this program without public input?  Will the public be asked the next time this or a similar issue occurs?
Copyright 2014 by Shear Law, LLC All rights reserved.   

Sunday, October 5, 2014

PA Attorney General's Office Rocked By Porn Email Scandal

In a very troubling development, prosecutors in the Pennsylvania attorney general's office and employees in other state agencies have been accused of sending porn and other inappropriate content via government email systems.  According to the Pittsburgh Post-Gazette, the Secretary of the Department of Environmental Protection and the department's deputy chief counsel have resigned over the scandal.

NBC News has reported that one political appointee who sits on the state Board of Probation and Parole has refused to step down at this point.  The emails involved in the scandal reportedly contained, "still photos of women in pin-up-style poses; mock workplace motivational posters that showed women performing sex acts with male characters who appeared to be their bosses; and video files, bearing winking titles like "NASCAR Victory," or "Delta Faucet commercial" that showed women and men engaged in intercourse and other sexually suggestive acts."

I have talked to some friends of mine who work(ed) in the attorney general's office of other states and none of them send porn via email to their coworkers on work or personal email.  Each person I spoke with also stated that if they were involved in this type of behavior they most likely would be fired or forced to resign.  Last year, a federal judge in Montana was forced into retirement over allegedly racist emails that he sent.  

It is important to be very careful about what one sends via email or other digital platforms.  In general, I do not recommend utilizing work email for personal purposes. 

Copyright 2014 by Shear Law, LLC All rights reserved.       

Saturday, October 4, 2014

Student Yik Yak Threat at Towson University Leads To Arrest

Be careful what you post online.  I discuss this theme constantly with my clients, during seminars, and with the media.  Earlier this week, a Towson University student was arrested after posting a threat on the app called Yik Yak

An 18-year old Towson University student allegedly made an anonymous threat against Towson University utilizing Yik Yak.  The alleged threat made a reference to creating a "Virginia Tech Part 2".  This troubling alleged reference to the terrible tragedy that occurred at Virginia Tech in 2007 that killed 33 people demonstrates that the student may need the assistance of a mental health professional.   

According to the Towson Towerlight, "[a] resident student first reported the threat to her resident assistant Wednesday afternoon. The RA took it to the Department of Housing and Residence Life, according to the Director of University Communications Ray Feldmann, who then took it to University Police. TUPD then alerted Baltimore County Police, Maryland State Police and the FBI."

The student who allegedly threatened Towson was charged with, "threat of massive violence and disturbing operations at a school." According to the Baltimore Sun, the defendant, "told police he had learned he wasn't performing well in the jazz class and was worried his parents would pull him out of school if his GPA dropped too much..."

The bottom line is that no matter how angry one is it is generally not recommended to express your anger on social media or any other digital platform.  If someone is thinking about harming others or themselves, they should meet with a mental health professional who may be able to assist them.

Copyright 2014 by Shear Law, LLC All rights reserved.     

Friday, October 3, 2014

Can Facebook Be Trusted With Personal Medical Information?

According to Reuters, Facebook wants to get into the healthcare business via your personal health care status.  The report states, "[t]he company [Facebook] is exploring creating online "support communities" that would connect Facebook users suffering from various ailments.  A small team is also considering new "preventative care" applications that would help people improve their lifestyles.

Is Facebook a safe environment to share personal health information?  This is a question that Facebook users need to answer themselves.  Would I ever trust Facebook with my personal health information?  I don't utilize Facebook to communicate with my family or friends or for any reason other than to explore the constantly changing features on the platform.  For the past several years, I have only utilized Facebook for professional purposes since I don't trust the platform with my personal information.

If you watch Cullen Hoback's documentary Terms and Conditions May Apply you may better understand how Facebook utilizes your personal information.  If watching a documentary is not up your alley, I encourage you to read the clause on Facebook's Terms and Conditions that states, " specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."  In layman's terms by posting content on Facebook you agree to Facebook utilizing your content in any way it sees fit.

Last year, Forbes reported that Facebook entered into agreements with multiple data brokers to ensure that the personal information you post (i.e. your friends lists, status updates, likes, etc..) is provided to companies/shadowy entities that are creating detailed online and offline personal dossiers about people. Besides advertisers, the information posted on Facebook may be utilized by insurance companies to deny claims and/or employers to discriminate against employees, and colleges to turn down applicants.

If after reading the above you still want to share your personal medical information with Facebook that is your right.  When it comes to privacy, you don't know how valuable it is until you lose it.

Copyright 2014 by Shear Law, LLC All rights reserved.

Thursday, October 2, 2014

Google May Have A Strong Defense Against Hacked Celeb Photo Lawsuit Threat

Page 6 of the New York Post was the first media outlet to report that some of the celebrities whose photos were recently hacked may sue Google for not "expeditiously" removing links/images to/of their copyrighted nude photos.  The lawyer, Marty Singer wrote a scathing letter to Google demanding it act "expeditiously" to remove the infringing content or face a lawsuit that may create $100+ million dollars in damages.

According to The New York Times, Marty Singer is "Guard Dog To The Stars (Legally Speaking)".  In a profile from several years ago, Mr. Singer is quoted as saying, “We’re one of the few firms that sue; we don’t just send a letter.”  While I admire Mr. Singer's work in protecting some of the most famous celebrities in the world, I wish him the best of luck and a very sympathetic court room if he follows through and sues Google for not responding "expeditiously" to his take down requests that are governed under the Digital Millennium Copyright Act.

In 2010, I wrote about the challenges copyright holders have under the Digital Millennium Copyright Act regarding protecting their content in a digital world.  At that time I stated,
"According to the Senate Report about the DMCA (S. Rep. 105-190 at 44), "[b]ecause the factual circumstances and technical parameters may vary from case to case, it is not possible to identify a uniform time limit for expeditious action." In my opinion, this indicates that a non-profit may be held to a different less onerous standard than a commercial entity. Since S. Rep 105-190 was created, technology has drastically changed and I do not believe it was the intent of the Senate to provide ISPs/OSPs wide latitude to remove infringing content at their leisure when even a minor delay in removal may cause serious financial repercussions to rights holders."

I further opined, "The DMCA's safe harbor provision is already tilted heavily in favor of ISPs/OSPs. Therefore, to level the playing field it is time for either Congress or the courts to declare that under the DMCA commercial entities have one business day to remove infringing content."   Whether one business day is still an "expeditious" enough standard is debatable; however, at that time I thought it was a good starting point to begin the discussion. 

Since 2010, neither Congress nor the courts have created a universal definition of the term "expeditiously".  Google has one of the most technologically advanced data mining machines in the world so it most likely can do a better job of removing copyrighted nude photos and/or links to them from appearing on its platforms.

Unfortunately, removing content from the Internet is a lot like "whack a mole".  When it has been removed from one website there is a chance it may appear on another platform.  Due to the recent Right To Be Forgotten Ruling in Europe, Mr. Singer may have better luck if any of his clients are European Union citizens; however, this right appears to only apply to Google's European products/services and it is unclear exactly how this new right will be implemented.

From a legal perspective, does Google have a strong legal defense under the DMCA's safe harbor?  In the 2013 Capital Records v. Vimeo case, a New York federal district court ruled that it was "expeditious" to take three and a half weeks to remove 170 infringing videos.  While this ruling only applies to the Southern District of New York, it may provide persuasive opinion for other jurisdictions.

Here, it appears a couple hundred copyrighted photos may have been part of the take down requests and the time frame appears to be a couple of weeks.  Since there is not a definitive legal standard regarding how "expeditiously" a digital platform must act to remove infringing content it appears Google may qualify for "Safe Harbor" protection.  If Google is eventually sued for allegedly violating the DMCA regarding this matter, it should be able to mount a vigorous and most likely successful defense.

Copyright 2014 by Shear Law, LLC All rights reserved.

Tuesday, September 30, 2014

New California Law Bans Google From Data Mining and Profiling Students For Profit

California has enacted the Student Online Personal Information Protection Act (SOPIPA or SB 1177) that better protects the personal privacy of students.  According to the bill's Legislative Counsel's Digest, "[t]his bill would prohibit an operator of an Internet Web site, online service, online application, or mobile application from knowingly engaging in targeted advertising to students or their parents or legal guardians, using covered information to amass a profile about a K–12 student, selling a student’s information, or disclosing covered information..."

One of new law's staunchest supporters is Common Sense Media's CEO and founder James Steyer.  On October 14, 2013
Common Sense Media sent an open letter and publicly sounded the alarm regarding the need to better safeguard the personal privacy of our children's school created digital data.  According to The New York Times, the organization sent a letter to 16 educational technology vendors to start a conversation on how to better protect student privacy.  The New York Times reported that Google declined to comment on Common Sense Media's public call for stronger privacy safeguards for students.

Google's refusal to comment on Common Sense Media's open letter to the educational technology industry followed an earlier sidestep to the Rhode Island School of Design's questions about its privacy protections for students who utilize Google's Apps For Education service by allegedly equating "not serving ads" to "no student data mining".  While Google may not be serving behavioral based ads to students through its school offerings at this point, this does not mean it is not data mining personal student information for other non-educational purposes.

Common Sense Media's concerns about  a lack of strong privacy protections for students were validated with the release of Fordham University Law School's Privacy and Cloud Computing Study.   According to the Huffington Post, the Fordham Study "found that only one-fourth of [school] districts tell parents about these services [new cloud based technologies] and one-fifth of districts don't have policies explicitly governing their use [of the data collected]. Many contracts between districts and technology vendors don't have privacy policies, and less than 7 percent of the contracts restrict vendors from selling student information. The agreements rarely address security, according to the Fordham research."  These findings were very disturbing and further confirmed the importance of Common Sense Media's call to strengthen student privacy laws.

Education Week's March 2014  investigative report regarding the federal Google Gmail wiretap lawsuit uncovered that Google "scans and indexes" student emails for advertising purposes.  At that time, Google refused to answer whether it was building user profiles of students based upon its access to their school work.  This troubling admission and refusal to be fully transparent about its student data collection and usage practices set off such a huge firestorm that on April 30, 2014,  Google announced it would allegedly discontinue the practice of scanning student emails for advertising purposes.  

In response to Google's alleged policy change, privacy law scholar Prof. Joel Reidenberg of Fordham told Education Week, Google's measure is "a positive step,"....... [however] "he identified two "significant problems" with it: Google can change this policy at any time, and, the scanning disclaimer is associated with advertising purposes only. There may be other commercial uses that they are exploiting student data for,...."... "such as selling information to textbook publishers, or test-preparation services."  Prof. Reidenberg's statements were prescient because subsequently Politico investigated the educational technology industry and validated his concerns that student data may be utilized by vendors for "other commercial uses".

More than 93% of Google's 2013 $55 billion dollars in revenue was derived from advertising.  While this is slightly lower than 2009's 97% figure, it demonstrates that Google's primary business for years has been data acquisition and mining to create user profiles for advertising purposes.  Google's advertising business has propelled it to become the 2nd most valuable company in the world.  While becoming the most valuable advertising/data mining company in the history of the world, Google has on multiple occasions intentionally cut corners and violated the personal privacy and safety of its users.  During the past several years, privacy regulators around the world have fined Google tens of millions of dollars for its illegal practices.    

The 2011 FTC-Google Buzz Agreement banned Google from making future privacy misrepresentations.  Unfortunately for users, Google wasted no time in breaching this agreement because in 2012 it paid a $22.5 million dollar record fine for misleading users about its privacy practices regarding the scandal known as the Apple "Safari Hack".  In 2013, Google entered into a multi-million dollar privacy violation settlement with 38 states regarding its Street View Project's data collection practices.  In Septemberof 2014, Germany's Hamburg data protection (privacy) regulator ruled that "Google is ordered to take the necessary technical and organizational measures to guarantee that their users can decide on their own if and to what extend their data is used for profiling."

When Education Week contacted Google regarding its position on SB 1177, "Google...declined to clarify whether it scans student email messages sent using its wildly popular Apps for Education tool suite in order to build profiles that might be used for commercial purposes other than targeted advertising...."  Google's refusal to emphatically deny it scans student emails to create user profiles for non-educational purposes may indicate that it is violating the 2011 FTC-Google Buzz Agreement, and/or its 2013 multi-state Attorney Generals Street View Project Agreement. 

While the EU generally appears to be moving in the right direction regarding enforcing its data protection laws against Google, the company so far has not been held accountable in the United States for violating the personal privacy of millions of students who utilize its school provided services.  When will Google be required by a regulatory authority or a court of law to answer the following questions relating to its student data collection and usage practices?: 

1.   How long has Google been scanning the emails of students for advertising/potential advertising purposes (List dates) and which school and how many students by school were affected by this practice?
2.  Has Google deleted the information it collected under the policy of scanning student emails for advertising/potential advertising purposes?  If so, when?
3.  Why was Google scanning student emails for advertising/potential advertising purposes?
4.  Does Google scan student emails or other student content for any purpose other than virus checking/spam filtering?  If yes, for what other purposes?
5.  Does Google create user profiles and/or combine multiple data points on students for any purpose other than to deliver school contracted services?  If yes, what data points is Google collecting, why is it collecting these data points, and when will Google delete these data points? 

Google's troubling behavior and policy reversal appears to have been the spark that ensured SB 1177 was passed by the state legislature and signed into law.  In addition, Google's unfair and deceptive trade practices demonstrate the need for greater accountability and enforcement to ensure that our children's personal privacy and safety are not compromised for corporate profit.  While the enactment of SB 1177 is a positive development, it is time for students, parents, school administrators, lawmakers, privacy advocates, and regulators to start holding Google accountable for its illegal student data mining and usage.

Copyright 2014 by Shear Law, LLC All rights reserved.

Friday, September 26, 2014

Did Facebook's Real Name Policy Lead to the Killing of An Iraqi Mother By Militants?

The Associated Press has reported that militants belonging to the Islamic State group have murdered a human rights lawyer in Mosul, Iraq.  According to the AP, "gunmen with the group's newly declared police force seized Samira Salih al-Nuaimi last week in a northeastern district of the Mosul while she was home with her husband and three children". 

It has been reported that the United Nations Assistance Mission in Iraq believes her arrest was connected to Facebook messages she posted that were critical of the militants' destruction of religious sites in Mosul. This troubling execution demonstrates how dire the situation is in the Middle East.

Are militants social media monitoring the areas that are under their control?  Are they buying social media monitoring services and deploying them to silence any dissent?  If so, which programs are being utilized?  Did Facebook's real name policy requirement make it easy for the militants to find and execute this lawyer and others who voice dissenting opinions on Facebook? 

Facebook's real name requirement enables it to better track users for advertising and monetization purposes.  The reason behind the policy is money.  Facebook has deals in place with data brokers to enable them to combine people's online persona/activities with their offline activity.  These agreements directly lead to the erosion of personal privacy.  This policy may also discriminate against drag queens and other artists.

Now that it appears that militants are using Facebook's Real Name policy to silence and kill its critics will Facebook change this policy to better protect users?

Copyright 2014 by Shear Law, LLC All rights reserved.