Friday, July 18, 2014

Social Media Evidence May Determine Who Shot Down Malaysian Plane

It appears that a Malaysian passenger jet may have been mistakenly shot down in the skies above territory that is in dispute between Ukraine and Russia.  USA Today is reporting that rebels who may be backed by Russia may have arms capable of downing a passenger jet that is flying 20,000+ feet in the sky.

Photos of the tragedy have appeared online and it leads me to believe that the crash site may become contaminated. In this hyper-sensitive and viral world everything posted online about this tragedy is put under a microscope.  For example, American Pie actor Jason Biggs Tweet “Anyone wanna buy my Malaysian Airlines frequent flier miles?” was deemed so offensive by the Internet community that he ended up issuing an apology after it went viral. 

Entertainers and politicians do not have a monopoly on regretting their online posts.  According to AFP, it appears that some Pro-Russian insurgents may also have itchy social media fingers because some of their online postings boasting about downing an airplane around the same time/place that the Malaysian jet went down have now been deleted.  Since the crash site may become contaminated will social media become crucial evidence in determining who shot down the Malaysian passenger jet? 

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

Wednesday, July 9, 2014

Porky's Fan? VA Prosecutor Requests Warrant To Photo Sexting Teen's Erect Penis

An article in the Washington Post alleges that Manassas City police and Prince William County prosecutors want to take photos of a teenage suspect's erect penis as evidence to prosecute him for sexting with his girlfriend.  In order to photograph the suspect's erect penis he may be required to go to a hospital and receive an injection to create an erection.

It appears that the case began when the suspect's (he is 17 years old) 15 year old girlfriend sent photos of herself to the 17 year old, who responded by sending the 15 year old girl allegedly pornographic images of himself.  The family of the girl notified authorities about the matter.  Interestingly, prosecutors did not file charges against the girl.   

This case reminds me of the movie Porky's when physical education teacher Ms. Balbricker asks the high school principal if he would sanction a penis (tallywacker) lineup of several students so she can identify which student stuck his penis through a peep hole in the girl's bathroom.  Ms. Balbricker claims she can identify the offending student's penis because it contains a distinctive mole.  In the movie, the request for the penis line up was denied. 

Was the prosecutor's troubling request inspired by Porky's?  As a parent of two young children, I am outraged by the actions of the police and prosecutors in this matter.  What happened to educating our kids about the dangers of sexting?  Why are prosecutors utilizing public resources to try to photograph a teenager's erect penis? 

My hope is that prosecutors and judges across the country realize that this is the wrong way to deal with sexting by teenagers.

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

Monday, July 7, 2014

Social Media Posts Lead To Firing of TV and Radio Personalities

Last month, Travel Channel personality Adam Richman made some very disturbing posts that led to his upcoming new show being postponed indefinitely.  Talk show host Anthony Cumia of Sirius was fired from his radio show last week for a series of allegedly racists Tweets.  Both of these incidents occurred "off the air" during personal time but they had negative employment consequences.

Social Media is not the panacea that some business consultants claim.  Too many self styled "social media consultants" advise their clients to pump out content on multiple platforms 24/7.  On a regular basis, clients ask me about the legal, business, and reputation related issues surrounding disturbing social media posts.  Unfortunately, I am usually contacted after a "social media consultant" has already provided career killing advice or inadequate training.

If one feels the need to respond to Tweets (or other types of posts) or get into a Facebook discussion with others, the amount of information/content posted should be limited since it may be utilized against you forever.  Yes, forever!  Any postings may be submitted as evidence in a court of law or may be used in the court of public opinion to destroy your career so less is usually more.  I have never had a client tell me he or she regretted not Tweeting more or posting a longer Facebook response.

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

Sunday, July 6, 2014

EPIC Files FTC Complaint over Facebook's Emotion Study

The Electronic Information Privacy Center (EPIC), a privacy advocacy group that has been performing great work for 20 years filed a complaint with the FTC alleging that Facebook's emotion study "deceived its users and violated the terms of a 2012 FTC consent decree."  The complaint was filed right before the July 4th holiday weekend. 

Facebook's refusal to issue an immediate apology regarding this issue demonstrates once again that the company is tone deaf when it comes to user privacy.  I have documented Facebook's troubling position regarding digital privacy time and time and time, etc...again. 

When I initially stated that Facebook's emotion study may have violated Facebook's FTC consent agreement early in the day on 6/30/14, I didn't see any other published articles mentioning this possibility.  Soon after I posted my article, Forbes reported that Facebook changed its terms to allegedly allow user data to be utilized for "research" purposes 4 months after the study was completed.

There are many users, technologists, and members of the media who are drinking the Silicon Valley Cool-Aid and defending Facebook's (and other companies) troubling practices because privacy policies, along with terms of use, and data use policies are written so broadly in the hopes that the language allows for any type of data usage and/or manipulation.  Just because one agrees to a troubling privacy policy/terms of use/data use policy clause in an agreement, that doesn't mean a court of law will automatically rule that the policy is legal and enforceable.   

The common law blue pencil doctrine is utilized when contract clauses are ruled to be unreasonable and violate public policy.  This doctrine enables courts to strike troubling clauses from executed agreements.  Is it time for the courts to start "blue penciling" unreasonable privacy policies, terms of use, data use policies, etc...? 

If some Silicon Valley companies don't start changing their data collection and usage practices it would not surprise me if the courts start flexing their blue pencil muscles to protect the personal privacy and safety of citizens in the Digital Age. 

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

Monday, June 30, 2014

Facebook's Unethical Experiment May Have Violated FTC Order

Facebook has proven once again that it does not care about its users' privacy and that it may manipulate their users' emotional well-being for corporate profit.   In an explosive article in The Atlantic it is alleged that Facebook intentionally manipulated the news feeds of almost 700,000 users as part of an experiment about emotional contagion on social networks

In the past, it appears Facebook related research was focused on analyzing the information users upload.  In contrast, this appears to be the first time Facebook has publicly acknowledged that it was intentionally manipulating its users' news feeds for psychological experimentation.  Is this the first time this has occurred?  If not, is Facebook prepared to come clean about this matter and all similar user experiments? 

According to the New York Times, "[t]he company [Facebook] says users consent to this kind of manipulation when they agree to its terms of service. But in the quick judgment of the Internet, that argument was not universally accepted."  I have reviewed Facebook's Terms of Service and it appears it may be a legal super hero Plastic Man stretch (think South Park Humancentipad episode about terms of service) that users agreed to psychological experimentation by agreeing to Facebook's terms of service.

The National Institutes of Health (NIH) which is located about a mile from my office has a very detailed history about the laws relating to the protection of human subjects who are part of an experiment.  Did Facebook violate the spirit or the letter of any of these laws?

It would not surprise me if Facebook and/or other digital platforms update their terms of service to clearly state they are able to perform this type of troubling psychological testing on users.  While it is too soon to speculate on whether the experiment abided by Facebook's terms of service and traditional subject informed consent rules, this should be a wake up call to regulators to look more closely at the data collection and usage practices of the digital ecosystem.  

Did Facebook inform the FTC about this experiment during its 2012 investigation that culminated in the 2012 FTC Consent Order that alleged Facebook violated its users' privacy.  Does performing psychological experiments on users without expressed informed consent violate this order?

The bottom line is that this should be a wake up call to those who post on Facebook and utilize platforms that use your personal information for behavioral advertising purposes and/or sell it to data brokers.  As I stated on June, 12, 2014, "I don't advise anyone who values their privacy to post personal information to Facebook because it has an abysmal record when it comes to protecting user privacy."  Facebook's latest actions demonstrate that it believes its users are nothing more than lab rats who give up all of their rights when agreeing to Facebook's Terms of Service and Privacy Policy.

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