Shear on Social Media Law

FTC Complaint Filed Against Snapchat

noreply@blogger.com (Bradley Shear) — Tue, 21 May 2013 17:08:00 +0000

Consumer privacy advocate EPIC has recently filed an FTC complaint against Snapchat because it believes the service is misleading consumers regarding its ability to delete the content being sent across its platform. According to multiple published reports, Snapchat may not be permanently deleting the content being sent through its service despite its claims.

Snapchat's promise that content would "self-destruct" after it is viewed may remind some people of Mission Impossible's self-destruct messaging system. Self destruct messages are ideal for some content that is sent online. Due to the constant barrage of media coverage regarding sexting scandals, an app that actually deletes content once it is viewed may be very profitable for a company.

Unless Snapchat is able to quickly fix its alleged inability to permanently delete the content it claims it is able to delete it may have significant legal liability. It may only be a matter of time before a user is damaged because content it thought was deleted was not.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The Application Privacy, Protection and Security Act of 2013

noreply@blogger.com (Bradley Shear) — Sat, 11 May 2013 01:36:00 +0000

Congress has recently introduced the Application Privacy, Protection and Security Act of 2013 (HR1913). This legislation would require mobile application developers to disclose what data they collect and how they utilize, share, and archive the data they capture.

In January, 2013, the California Attorney General's office issued a privacy report on the mobile apps ecosystem. Subsequently, on February 1, 2013, an FTC report recommended ways for mobile app developers to improve privacy disclosures. At that time, the FTC stated that app developers should:

Have a privacy policy and make sure it is easily accessible through the app stores;
Provide just-in-time disclosures and obtain affirmative express consent before collecting and sharing sensitive information (to the extent the platforms have not already provided such disclosures and obtained such consent);
Improve coordination and communication with ad networks and other third parties that provide services for apps, such as analytics companies, so the app developers can better understand the software they are using and, in turn, provide accurate disclosures to consumers.

HR 1913 appears it will make some of the FTC's recommendations mandatory. Its unfortunate that the actions of some members of the app ecosystem may lead to further regulation of the entire industry.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

New Mexico Bans NCAA Student-Athlete Social Media Monitoring Firms

noreply@blogger.com (Bradley Shear) — Thu, 09 May 2013 15:49:00 +0000

New Mexico recently joined Delaware, California, New Jersey, Michigan, Arkansas, and Utah in protecting their schools, school employees, students, and taxpayers from the potential costs and legal liability issues associated with social media monitoring students. Under New Mexico SB 422, it is unlawful "to demand access in any manner to a student's, applicant's or potential applicant's account or profile on a social networking web site."

The enactment of SB 422 will greatly benefit schools, school employees, students, and taxpayers because collectively post-secondary schools in New Mexico may save millions of dollars in potential compliance costs and tens or hundreds of millions of dollars in potential costs associated with social media related lawsuits. SB 422 along with similar laws around the country appear to negatively affect the following companies that offer social media monitoring services: UDiligence, Varsity Monitor, Fieldhouse Media, and Jump Forward.

It appears that the only way for the above mentioned social media monitoring services to properly function is if a student either downloads an application onto his personal account(s), provides a username(s) and/or password(s) to his personal account(s), or if a student authenticates his social media account(s). These services may claim that all they need to properly work is a student's name or alias to search for a public social media account. However, performing an Internet search and guessing that an account belongs to a particular student just because it is on the Internet may put you in the same position as one of the people portrayed in this hilarious State Farm Commercial. According to CNN, as of last August, Facebook may have at least 83 million fake accounts and according to PRWeek, Twitter may have as many as 20 million fake accounts.

Any company that approaches schools to sell social media monitoring services to track students' personal digital accounts is selling a legal liability time bomb. If a school is monitoring the personal social media content of their students and misses an indication that there may be a crime committed it may cost the school more than $100 million dollars. For proof, just review the Penn State emails regarding the Jerry Sandusky matter. Does a school want to be on the hook for tens or hundreds of millions of dollars in legal liability because it was utilizing a social media monitoring service to track their students personal digital accounts?

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

California's Right to Know Act

noreply@blogger.com (Bradley Shear) — Fri, 26 Apr 2013 21:00:00 +0000

California recently introduced "AB-1291 Privacy: Right to Know Act of 2013: disclosure of a customer’s personal information." If enacted, the bill would update California's 2003 "Shine the Light" law (Civil Code Section 1798.80-1798.84) to account for the new data mining technologies and information sharing practices that have proliferated over the past ten years. According to the bill's sponsor Assemblymember Bonnie Lowenthal, "AB 1291 expands the definition of personal information to include sensitive data, such as location, buying habits, and sexual orientation. By modernizing the requirements, consumers have a right to know not just how their basic information may have been used for junk mail, but also how it's collected and shared with data brokers, advertisers, and others."

The 2003 "Shine the Light" law enabled California residents to find out how businesses utilize their personal information. In general, the law requires most companies (except federal financial institutions and those with less than 20 employees) that do business with California residents to either disclose how personal information is being shared for direct marketing purposes or allow customers to opt out of information sharing. The law provides Californians the right once a calendar year to obtain free of charge the type of personal data that a business has disclosed to third parties for direct marketing activities and the names and contact information of all third parties that received the personal data.

Since 2003, data mining and behavioral advertising has proliferated beyond what many may have envisioned when the "Shine the Light" law was enacted. To reign in some of these practices, a coalition of privacy organizations are advocating updating the law to account for new technologies. According the Wall Street Journal, there has been significant industry backlash against updating the 2003 law.

The Right To Know Act's general principles appear to follow the European Union's philosophy that its citizens have a right to require companies doing business with them to provide them with the type of information that is being collected about them. Europe's privacy laws generally provide its citizens more control than the U.S. over how personal data may be utilized. This was demonstrated when six EU data protection authorities recently initiated coordinated enforcement measures against Google for failing to fix alleged flaws in its 2012 privacy policy update. Google's privacy policy change along with Austrian law student Max Schrems experience with Facebook may have sparked the decision to introduce the Right to Know Act.

Earlier this year, NBC News reported that Equifax has a database that contains almost 200 million employment and salary records that covers more than a third of all U.S. adults. Some of these records may include week by week pay stub information. While it may be troubling that Equifax has acquired this detailed information, at least under the Fair Credit Reporting Act consumers are able to obtain a report once a year about the data that is being collected about them.

Personal privacy may be further damaged by the new new partnership between Facebook and data brokers Acxiom, Epsilon, and Datalogic that is designed to better monetize the content of their users. The FTC is so concerned about some of the practices of data brokers that late last year it announced that it is studying how the industry collects and utilizes consumer data. In what might be an effort to ward off potential future regulation, Axciom recently announced it was planning a service to allow consumers to obtain their personal files.

Should advertisers be able to analyze your personal emails and/or your personal files in the cloud and utilize the information to behavioral advertise and/or combine this information with other digital and/or real world data across multiple platforms to create personal user profiles that may be accessed not only by marketers but also by insurance companies, banks, law enforcement, etc...? What if due to the types of ads that are processed on a particular email account a company is able to make an inference about one's sexual orientation, race, religion, etc.. and this inference is utilized for discriminatory purposes?

The intentions of the law are noble; however, due to the way the bill is currently drafted it may lead to some unintended compliance costs for businesses. Therefore, I believe the California state legislature should work to find common ground between supporters and opponents of the bill that would increase transparency for consumers without creating an economic hardship on the business community.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

AP Twitter Account Hack Causes Dow Jones to Plunge

noreply@blogger.com (Bradley Shear) — Tue, 23 Apr 2013 20:03:00 +0000

As social media becomes a bigger part of our everyday lives, the legal issues surrounding social media increase greatly. One of the verified Associated Press Twitter accounts was hacked earlier today and the hacker tweeted, "Breaking: Two Explosions in the White House and Barack Obama is injured". Within minutes the Dow Jones Industrial Average plunged 140 points.

Hacking into the AP's Twitter account may violate multiple federal and state laws. Was this hack done to intentionally create chaos and/or harm our financial makets? Was the hacker testing how the U.S. financial markets, and/or the media, and/or the government would react to the hack? What was the motive behind the hack? Was this just a big joke done for personal pleasure? Do those who lost money in the stock market because of the hack have a cause of action against the hacker?

These are some of the many questions that may be answered in the near future.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Will Social Media Crowdsourcing Catch The Boston Marathon Terrorists?

noreply@blogger.com (Bradley Shear) — Thu, 18 Apr 2013 13:00:00 +0000

The Boston Marathon terrorist bombing was a cowardly act that killed at least 3 people, caused at least 13 people to lose limbs, and hospitalized 183. This terrorist act should remind us that post 9/11 there are still threats to democracy and our way of life.

While our nation mourns this terrible tragedy, law enforcement officials are hard at work trying to capture the perpetrators of this dastardly act. One of the tools that the police are utilizing in their hunt for the terrorists is social media crowdsourcing. According to Wikipedia, crowdsourcing "is the practice of obtaining needed services, ideas, or content by soliciting contributions from a large group of people, and especially from an online community". Will social media be able to quicken the pace to identity and then capture the perpetrators of this tragedy?

Facebook, Google, and Microsoft have each been fined and/or forced to change their practices because some of their activities have been found to violate state and/or federal law/regulations. While some of these practices have raised the angst of regulators and/or privacy advocates the technology of these companies may also help catch the Boston Marathon Terrorists.

Facebook has been utilized by Massachusetts authorities to catch criminals. Google Earth has been used to solve various crimes. Microsoft worked with the New York City Police Department to develop a counter-terrorism and crime prevention system. While some of these technologies may be leading us closer to a surveillance state they may also help prevent terrorism and catch criminals.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

When will the FTC follow the EU's lead in protecting digital privacy?

noreply@blogger.com (Bradley Shear) — Mon, 15 Apr 2013 15:57:00 +0000

Are Google's March 2012 privacy policy changes legal? This is a question that the European data protection authorities have been working on since Google first announced its intention to change its privacy policies in January 2012. Soon after the announcement, France asked European data protection authorities to open an inquiry into the matter. In addition, U.S. Representative Edward Markey announced his intention to ask the FTC whether Google's privacy policy changes were also legal in the United States.

On April 2, 2013, the United Kingdom's Information Commissioner's Office (ICO) stated, "the ICO has launched an investigation into whether Google’s revised March 2012 privacy policy is compliant with the (European) Data Protection Act. The action follows an initial investigation by the French data protection authority CNIL, on behalf of the Article 29 group of which the ICO is a member. Several data protection authorities across Europe are now considering whether the policy is compliant with their own national legislation."

The ICO's announcement was in conjunction with France's Commission nationale de l’informatique et des libertés (CNIL-France's privacy body) press release that stated on March 19, 2013, "representatives of Google Inc. were invited at their request to meet with the taskforce led by the CNIL and composed of data protection authorities of France, Germany, Italy, the Netherlands, Spain, and the United-Kingdom. Following this meeting, no change (by Google to its Privacy Policy) has been seen." The CNIL further stated, "[t]he article 29 working party’s analysis is finalized. It is now up to each national data protection authority to carry out further investigations according to the provisions of its national law transposing European legislation."

How will this development affect Google? It means that French data protection authorities along with regulators in the UK, Netherlands, Germany, Spain and Italy may take joint legal action involving an investigation and possible fines into Google's privacy policy changes that enables it to combine the data it obtains from users across all of its digital services. The ICO has the authority to levy fines of up to £500,000 for breaches of the Data Protection Act. The CNIL may fine an entity up to €300,000 (£255,000). While these fines may not be much of a deterrent to Google and/or other companies to stop allegedly violating European privacy laws, regulators may also sue to block a company from operating in Europe. If this route is taken against Google and/or others it may harm a company's ability to operate in Europe.

How will the EU's continued privacy law investigations into Google's practices affect Google's users in the United States? When will the FTC follow the EU's lead and request more information about Google's updated privacy policies? While it is too soon to speculate on the FTC's next move, it would not surprise me if the FTC eventually investigates Google and/or others who change their privacy policies to better enable the data mining of users' content.

The EU data protection authorities and the FTC must properly balance the personal privacy rights of citizens with the ability of digital companies to be able to continue to thrive and expand. Should Apple, Facebook, Google, etc.. be allowed to collect, archive, and utilize user data without any limits? Last December, there was a major outcry when Instagram (Facebook bought it last year for $1 billion dollars) changed its privacy policy so it would be able to better data mine/monetize the personal content of its users. Only after a very public uproar, did Instagram reverse course on most of its proposed privacy policy changes.

What if Instagram followed through with all of its planned privacy policy changes? Would users have any real recourse against the service absent deleting their account? Should digital platforms be able to change their privacy policies to enable them to better data mine their users' personal data at any time? Some digital services/platforms have become so intertwined in our lives (Ex: Apple, Facebook, Google, etc...) that users may be willing to agree to any updated terms to continue to participate.

The television show South Park had an interesting observation about what happens when a company changes its policies in an episode last year titled the Human Centipad. This episode demonstrated to the extreme of what may happen when a company is able to unilaterally change its policies and its users must agree to them to continue to utilize the service.

When Apple, Facebook, Google, etc... update their policies and these changes appear to erode personal privacy protections and/or enable more data mining that does not appear to be in the best interest of users should regulatory authorities around the world, including the FTC, stop or modify these changes? If Google's privacy policy changes are not legal in Europe should they be legal in the United States? Should European digital users be afforded greater privacy protections than those in the United States?

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Utah Bans Student-Athlete Social Media Monitoring Firms

noreply@blogger.com (Bradley Shear) — Wed, 10 Apr 2013 03:53:00 +0000

Utah recently became the latest state to enact legislation that bans schools from deploying social media monitoring firms that require students verify their social media user names and/or passwords. Utah joins Delaware, California, Michigan, and New Jersey in protecting their schools, students, and taxpayers from social media snake oil salesmen who are selling legal liability time bombs.

The Utah legislation appears to have been prompted because of a Time Magazine article that discussed the student-athlete social media policy of one Utah school. This academic institution appeared to require student-athletes sign a social media policy that stated, "To the extent that any federal, state, or local law prohibits the Athletic Department from accessing my social networking accounts, I hereby waive any and all such rights and protections." According to constitutional law expert Professor Phil Closius, this student-athlete social media policy was "clearly suspect". Under Utah's new law (H.B. 100), this policy is not just clearly suspect but against the law.

What does Utah's new law along with similar laws across the country mean for schools? In short, academic institutions need to re-examine their student-athlete social media policies and education programs to ensure compliance with all applicable state and federal laws. Athletic departments need to understand that social media is not just a public relations issue but a serious legal matter that requires the counsel of social media law experts who understand college athletics and NCAA compliance. Drafting and implementing improper student-athlete social media policies may create millions of dollars in legal liability.

Consultants who sell "student-athlete social media monitoring services" to athletic departments are selling legal liability time bombs. Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services. For example, how does someone transition from being a health care recruiter to a social media student-athlete compliance and education consultant overnight?

The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content. These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.

In order for social media monitoring services to properly function students must at least verify their social media user names. Absent student verification these services are unable properly work. Furthermore, athletic departments should not be fooled into believing these services are compliant with all state and/or federal laws. In general, these companies also claim their services are educational tools while others claim they want to protect the online reputation of schools and/or students. Has anyone asked those who are approaching schools for their teaching credentials?

It appears that the founders of these companies have no verifiable experience that would lend any credibility to their claims. Consultants who are marketing student-athlete social media monitoring services to athletic departments do not understand social media, NCAA compliance, public policy, or the law; and they apparently care more about making a sale than protecting schools and student-athletes.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Arkansas Bans NCAA Student-Athlete Social Media Monitoring Companies

noreply@blogger.com (Bradley Shear) — Tue, 09 Apr 2013 03:48:00 +0000

Arkansas has became the latest state to enact legislation that bans schools from deploying social media monitoring firms to track their students' personal digital accounts. Arkansas joins Delaware, California, Michigan, New Jersey and Utah in protecting their schools, students, and taxpayers from fear and misinformation.

Consultants who sell student-athlete social media monitoring services to athletic departments are selling legal liability time bombs. Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services.

One consultant quoted me (who appears to have no verifiable experience in college athletics, social media, law, or compliance before he started selling his services to NCAA schools) in a press release touting his social media monitoring service last year. Quoting me to market a service that may create tremendous legal liability for NCAA schools is very troubling. Lawyers and risk professionals who understand this issue would never endorse a service that may increase a school's legal liability and/or may advise an academic institution to violate state and/or federal law.

The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content. These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

University of Maryland Law School's Symposium on Social Media and the Law

noreply@blogger.com (Bradley Shear) — Tue, 02 Apr 2013 03:41:00 +0000

On Friday, April 5, 2013, from 9:00 am to 3:30 pm the University of Maryland Francis King Carey School of Law's Journal of Business & Technology Law is sponsoring a symposium titled, "Social Media and the Law: An Exploratory Look into the Legal Effects of Online Interconnectedness." The event is free, open to the general public, and lunch will be provided to those who RSVP.

Speakers will present on a range of topics, including: the constitutionality of student athlete social media policies; the relationship between social media interfaces and copyright law; and how social media laws are developing with respect to employment law, contracts, and privacy matters. Our speakers include private practitioners, a higher education media relations representative, and professors of law and communications. To RSVP please visit the Journal's website: http://www.law.umaryland.edu/academics/journals/jbtl/symposia.html .

Will Google Glass Change Our Children's Expectation of Privacy?

noreply@blogger.com (Bradley Shear) — Sat, 23 Mar 2013 06:33:00 +0000

Do children still have an expectation of privacy? Every day our personal privacy is slowly being eroded because of advances in technology. New inventions have enabled our society to more efficiently mass produce food; create the infrastructure to warm our homes and offices in the winter and cool them in the summer; and to invent digital devices that allow us to communicate and share information from around the world and outer space almost instantaneously.

Frictionless sharing of information between digital platforms enables us to easily provide our thoughts and ideas without having to re-post the same content over and over. A recent change to the U.S. Video Privacy Protection Act directly benefitted some cloud based computing platforms because the revision now allows them to easily enable their users to share their video viewing history to others online. While frictionless sharing enables users to quickly post content across multiple digital platforms it may also change our expectation of privacy.

In 1890, a seminal article co-authored by future Supreme Court Justice Louis Brandeis called "The Right to Privacy" was published in the Harvard Law Review. The law review article stated, "[i]nstantaneous photographs and newspaper enterprises have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the house-tops." Justice Brandies' thoughts about privacy are generally credited as the first modern scholarship about the right and expectation of privacy in the United States.

While new digital technologies have made it easier for us to communicate with others, many of these new services have made it more difficult to protect our privacy. Once content is converted into digital form, it may go viral and cause major personal embarrassment. The digital sharing of inappropriate content may permanently destroy one's personal and/or professional reputation. Student digital gaffes have been around for years; however, the increased usage of mobile phones with digital cameras, social media, and cloud computing services over the past several years has only increased the potential for more electronic mistakes that may put personal privacy and security at risk.

According to a 2012 Pew Report entitled, "Parents, Teens, and Online Privacy", 81% of parents of teens say they are concerned about how much information advertisers can learn about their child's online behavior. This Pew Report also found that 69% of parents of teens are concerned about how their child's online behavior may affect their future academic or employment opportunities. This report was created before all of the recent media attention surrounding Google's Project Glass (aka Google Glasses).

Project Glass is a virtual reality pair of glasses that contains many of the same features of a smart phone. For example, Google Glasses have an embedded camera, microphone, and GPS. While Google Glasses have the potential to become one of the first commercially viable augmented reality devices, there are some significant privacy concerns that may affect children and create legal liability for users.

If a teacher or a student wears a pair of Google Glasses during class will those in the classroom feel comfortable knowing that every in class interaction may be streamed online? How will this affect the learning process? How will students react knowing that everything stated in class may also be converted to text and stored in Google's cloud and eventually attached to their online profile forever. How will students feel if their personal conversations and/or in class thoughts and ideas are monetized by Google and/or advertisers? How will Google's Voice Search and Search By Image technology be utilized to data mine the information obtained from Project Glass?

Twelve states generally require all parties consent to their conversations being recorded. Will Google Glass be required to post a warning label so consumers are fully informed about the potential legal risks of using this product?

Many schools across the country are implementing digital media use policies that cover social and mobile technologies. However, Google's Glass Project may require schools to also include augmented reality technologies in their policies.

The Internet never forgets and content uploaded online is impossible to fully scrub from the web. Since digital platforms have the ability to broadcast to the entire world audio and video of our children that may permanently damage their reputations should the law provide our children special protections against these situations? Children under the age of 18 generally have the right to void agreements they enter into so should they also have the right to require that search engines delete personally identifiable information about them that may harm their ability to attend the school of their dreams or obtain gainful employment?

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Did Social Media Convict the Steubenville High School Football Players?

noreply@blogger.com (Bradley Shear) — Sun, 17 Mar 2013 19:42:00 +0000

Two guilty verdicts were handed down in the rape trial of two Steubenville high school football players. There were no winners in this case. A teenage girl lost her innocence, a couple tennage boys are forever branded as sex offenders, and a small town may now be known as that town where a disgusting crime came to light because of the power of social media.

Without social media, it is possible that this case may never have gone to trial. After the New York Times covered this matter last December, the story picked up steam. Subsequently, Anonymous allegedly hacked into the digital accounts of some of those who may have been involved or witnessed the activities surrounding the alleged criminal activity.

YouTube, Instagram, Twitter, and text messaging were utilized by those who either witnessed the incident or who may have been involved with the matter. The digital content that came to light shocked and sickened the public and may have helped convict the perpetrators of this crime.

According to ABC News, "[t]he contents of 13 cell phones were analyzed, which amounted to 396,270 text messages, 308,586 photos, 940 videos, 3,188 phone calls and 16,422 contacts." Absent the digital evidence via multipe social media platforms would there have been a guilty verdict? While witness testimony may be persuasive, photos and videos have the ability to become very powerful evidence that may trump eyewitness testimony. Even though this isn't the first case where social media may have affected the outcome of a trial, it may be a watershed moment for the usage of social media evidence.

The bottom line is that those who want to violate the law should think twice because anyone who has a mobile digital electronic device has the ability to capture the criminal act. Within seconds, people from around the world may become aware of the matter via an online post. Therefore, social media may have the ability to become a deterrent against crime.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Texas Bill To Allow Service of Process Via Facebook

noreply@blogger.com (Bradley Shear) — Wed, 06 Mar 2013 21:50:00 +0000

Texas recently introduced a bill that would allow for service of process via Facebook. Texas House Bill 1989 if enacted would make the Lone Star State the first in the United States to allow for service of process via social media as an alternative means of service.

In 2002, a U.S. court approved service of process via email. In 2008, an Australian court allowed for service of process via social media. In February of 2012, I told ABC News that I believe service of process via social media will become a reality in the future.

As I stated on February 25, 2012, the biggest problem with service via social media is authentication. Even though a digital account may appear to belong to a litigant in a judicial proceeding, account authentication is required to ensure that the account belongs to the right person.

I believe service of process via social or digital means will eventually become more common. However, absent the proper safeguards to ensure the right "John Doe" is actually served this method has many challenges.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

European Commission Fines Microsoft $732 Million Dollars Over Browser Choice

noreply@blogger.com (Bradley Shear) — Wed, 06 Mar 2013 14:43:00 +0000

According to the New York Times, the European Commission has flexed its antitrust muscles and fined Microsoft $732 million dollars for failing to live up to a settlement it had previously signed with regulators. The fine was based upon a 2009 agreement that required Microsoft to provide European Windows users a choice of web browsers.

Microsoft has previously admitted that it may have violated its agreement with regulators and apologized for non-compliance. Microsoft's fine is not the largest that has been levied against a U.S. based technology company. In 2009, Intel was fined $1.4 billion dollars for allegedly abusing its dominance in the chip market.

European regulators are currently investigating Google regarding its alleged dominant position in the search engine market. While the FTC has ended its antitrust investigation of Google in January, European regulators have not.

The bottom line is that it appears that European regulators have American technology companies in their cross hairs. Therefore, U.S. based companies that create some of the world's most innovative products for use in the digital space should ensure that they adhere to all regulations and laws in the countries they operate in.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

White House Says: Unlocking Cell Phones Should Be Legal

noreply@blogger.com (Bradley Shear) — Tue, 05 Mar 2013 02:44:00 +0000

Should it be legal to unlock your cell phone? It was up until earlier this year. However, due to a ruling by the Library of Congress that was based on a new interpretation of the DMCA it is now against the law to unlock your legally bought subsidized cell phone.

Last month, a petition that was started on the White House's web site received more than 100,000 e-signatures to request that that ruling be changed. Today, the White House responded and stated that unlocking cell phones should be legal.

Once a consumer has fulfilled his contractual obligations to a service provider for a subsidized cell phone why shouldn't he be able to utilize his cell phone on another carrier? When someone buys a new car and is finished paying off any outstanding loans on it he is able to generally sell or utilize the vehicle in any manner that suits his purpose. This includes updating the car's engines and internal mechanics. Therefore, why shouldn't cell phone owners have the same rights?

While the White House and the FCC's acknowledgement that this is a matter that may need a legislative resolution is good news; changing the law will take more than a couple of announcements and/or blog posts.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Massachusetts Bill To Ban Data-Mining of Student Emails

noreply@blogger.com (Bradley Shear) — Mon, 25 Feb 2013 18:19:00 +0000

Massachusetts has become the first state to introduce legislation that would ban companies that provide cloud computing services from processing student data for commercial purposes. MA Bill 331 is sponsored by Rep. Carlo Basile and it was referred to the House Committee on Education on January 22, 2013.

MA Bill 331 states, "Section 1. Notwithstanding any general or special law to the contrary any person who provides a cloud computing service to an educational institution operating within the State shall process data of a student enrolled in kindergarten through twelfth grade for the sole purpose of providing the cloud computing service to the educational institution and shall not process such data for any commercial purpose, including but not limited to advertising purposes that benefit the cloud computing service provider."

The bill may be interpreted to mean that firms who offer cloud computing services to Massachusetts academic institutions that enroll kindergarten through twelfth graders may not utilize the information contained in student emails for monetary gain. If this legislation is enacted, cloud service providers may not serve ads to students on school provided digital accounts based upon a student's digitally expressed thoughts or ideas.

Internet advertisers monetize the thoughts and/or ideas of its users via behavioral advertising. Digital behavioral advertising may occur when an email service provider scans the content of an email and then serves the user ads based upon the information it processes. For example, if a student emailed his health or sex education teacher to ask about sexually transmitted diseases or teen pregnancy, MA Bill 331 would ban a cloud computing service provider from serving ads for condoms or other related products or services to the student's school owned digital account.

According to a statement from the American Academy of Pediatrics, "young people are cognitively and psychologically defenseless against advertising." Therefore, would it be acceptable if a teacher was paid to review student class work, noted student preferences, and then returned graded assignments with offers for discounted merchandise based upon a student's home work or in class assignments?

Since it would be a breach of the National Education Association's Code of Ethics if a teacher utilizes personal knowledge obtained from his students for private advantage, shouldn't it also be a breach of the Code of Ethics if a cloud computing service provider utilizes an algorithm to do the same digitally? Because it is not acceptable if teachers offered discounts based upon student preferences gleaned from school work it should also not be acceptable if a computer algorithm processed the same information digitally and then served ads based upon the same data.

While MA Bill 331 is a good start, it should be amended to cover post-secondary students because Massachusetts is home to tens of thousands of college students and some of the most prestigious academic institutions in the world. Shouldn't students in college and graduate school also have their student-teacher interactions protected from being utilized for commercial purposes?

In general, Google's Apps For Education standard agreement provides schools the ability to serve ads to its students. The agreements generally state that all advertising revenue generated will be retained by Google so at this point it appears that schools do not have an economic incentive to turn on the behavioral advertising function. However, what will stop Google from approaching schools and stating that in order to continue receiving Google Apps for Education for free the advertising function must be enabled? Should graded school assignments and personal student-teacher interactions be utilized to serve ads to students in order to pay for educational software?

Educational software is expensive and because of the terrible recession that our country has experienced many states have seen steep cuts in education funding. While Massachusetts public schools have not yet experienced the same type of funding cuts that have beleaguered many other states what will happen when Massachusetts decides it must recalibrate how it dedicates its resources and K-12 schools are negatively affected by this change?

Tens of thousands of kindergarten through twelfth grade students in Massachusetts may already be at risk of having their school work data mined for advertising purposes. For example, students who attend Burlington Public Schools and Plymouth Public Schools in Massachusetts utilize Google Apps For Education. If students at these schools use their school provided Gmail based accounts after they graduate or link their personal YouTube or Google Plus account to their school sanctioned Gmail account their student-teacher interactions and class work may be monetized by Google and/or its advertising partners. However, if MA Bill 331 is enacted it may stop third parties from being able to monetize the digital thoughts and ideas of Massachusetts students and better protect their privacy and security.

96 percent of Google's $37.9 billion in 2011 revenue was earned from advertising. Is Google providing schools free access to its Google Apps For Education software in the hopes that it will eventually earn advertising revenue from data mining our children's digital school assignments and education-related interactions? Absent state and/or federal laws that ban the data mining of our children's class work on school provided digital accounts companies that offer educational cloud computing services to our schools may utilize our kid's personal private data for commercial gain.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Right To Privacy Will Be Protected By The Social Networking Online Protection Act

noreply@blogger.com (Bradley Shear) — Tue, 19 Feb 2013 04:03:00 +0000

The Social Networking Online Protection Act (SNOPA) was recently reintroduced by Congressman Eliot Engel of New York. SNOPA is the first bipartisan federal legislation designed to protect the digital privacy of employees, job applicants, students, and student applicants in the Social Media Age. The legislation may also provide a legal liability shield to businesses and academic institutions that may make it difficult for litigants to claim that these entities have a legal duty to monitor the personal digital accounts of their employees and/or students.

The right to digital privacy needs to be statutorily strengthened in the United States. Last year, the Supreme Court in U.S. v. Jones ruled that the government needs a warrant in order to place a GPS device onto a suspect's car. The Jones' decision demonstrates that the judiciary recognizes that people still have an expectation of privacy in the Social Media Age.

At this point, there have been only a handful of publicized examples where employees have alleged that their employer and/or a company with whom they interviewed with requested access to their personal digital accounts. This may be an underreported problem because according to a 2012 Harris Interactive Survey, 37% of hiring managers utilize social networking sites to screen candidates.

Without the protections that SNOPA provides how long will it be before it becomes commonplace for employers to require job applicants and/or employees provide access to personal password protected digital accounts as part of the employment process? In 2008, Congress enacted the Genetic Information Non-Discrimination Act (GINA) to bar employers from using genetic information when making employment decisions. GINA was not enacted because of a high profile incident where an employer required a candidate to submit his genetic information as part of the application process; it was enacted as a pre-emptive measure. In contrast, there are already multiple verifiable situations where employers are requiring job applicants provide their personal digital credentials as part of the application process.

While there have only been a handful of publicized incidents where employers are requiring access to their candidates' personal password protected digital content, thousands of students across the country are being required to turn over their digital usernames and/or passwords and/or Facebook Friend a school administrator and/or install cyberstalking software in order to attend a public school, keep a scholarship or participate in extra-curricular activities.

There have been multiple incidents where public school students have been forced without reasonable suspicion to turn over their personal Facebook and/or email usernames and passwords to school administrators. Universities across the country are requiring student-athletes to register their social media user names and/or Facebook Friend school officials and/or install cyberstalking software to track and archive their personal digital activity.

With access comes responsibility. Last year, a former Library of Congress employee alleged in a lawsuit that because his former supervisor viewed one of the groups he liked on Facebook he was discriminated against. The family of Yardley Love, a University of Virginia (UVA) student-athlete who was murdered on UVA's campus by her former boyfriend George Huguely (also a UVA student-athlete), is suing UVA and school employees for $30 million dollars for failing to properly protect their daughter.

Love's family alleges that UVA and its employees knew or should have known Huguely was a danger to Love because Huguely was not properly disciplined for past known inappropriate conduct because he was a star student-athlete. While it is too soon to speculate what type of evidence Love's family will introduce during legal proceedings, if UVA and/or its employees had access to Huguely's or Love's personal digital accounts and missed and/or intentionally ignored content that may have indicated a potential problem this may create tremendous legal liability for UVA and/or its employees.

If SNOPA is enacted students will not have to worry about being required to provide access to their personal digital accounts in order to attend the school of their dreams or keep their scholarships. In addition, academic institutions that do not violate the law may have a strong legal liability shield against litigants who claim schools have a legal duty to become the social media police.

Protecting personal digital privacy will help grow the economy and foment new technological breakthroughs. If people believe their personal password protected digital thoughts, ideas, and creations are statutorily protected they will increase their usage of Dropbox, Microsoft SkyDrive, Google Plus, Facebook, etc... It is vital for our country's competitive future to implement public policy that encourages increased digital platform participation in our increasingly interconnected world.

SNOPA would encourage widespread consumer adoption of cloud based platforms because users will not have to worry that their employer or school may require they provide access to their personal password protected digital accounts absent a judicial order. SNOPA is bipartisan win-win legislation that protects employers, employees, job applicants, schools, students, and student-applicants.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

(Full Disclosure: I am working with Congressman Engel's office on this bill.)

U.S. Social Networking Online Protection Act Reintroduced

noreply@blogger.com (Bradley Shear) — Wed, 06 Feb 2013 18:23:00 +0000

The Social Networking Online Protection Act (SNOPA) was reintroduced today by Congressman Elliot Engel of New York. The bill would ban employers and schools from being able to request or require that employees, job applicants, students, or student applicants provide access to personal password protected digital accounts. The bill is a win for businesses, schools, employees, job applicants, student applicants, students, and the right to privacy.

With access comes responsibility. Without access it would be very difficult for an employer or school to be held legally liable for the digital content that an employee or student posts on their personal digital accounts. Therefore, the bill may protect businesses, schools, and taxpayers from tremendous legal liability.

This bill is needed because some companies are approaching employers and schools with the pitch: require your employees and/or students to verify their digital media credentials so we can scan everything they have said online, everything said about them online, and everything their digital connections discuss online. In general, nobody should be required to verify their personal digital credentials/activities/content absent a legal proceeding that requires it. More information will be forthcoming.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

(Full Disclosure: I am working with Congressman Engel's office on this bill.)

FTC: More Mobile Apps Privacy Disclosures Required

noreply@blogger.com (Bradley Shear) — Fri, 01 Feb 2013 18:18:00 +0000

The FTC recently released its “Mobile Privacy Disclosure: Building Trust Through Transparency” staff report. The theme of the report is that mobile platform operating system providers (Amazon, Apple, BlackBerry, Google, and Microsoft), app developers, ad networks, and analytic companies need to provide consumers with timely, easy-to-understand disclosures about the data that is collected about them and how the data is utilized.

It appears to build on the September 2012 report “Marketing Your Mobile App: Get it Right From the Start”. Some of the recommendations in the September 2012 report include: build privacy considerations in from the start, honor your privacy promises, collect sensitive information only with consent, and keep user data secure.

Some members of the app ecosystem appear to have taken the FTC’s September 2012 report very seriously and anticipated that the FTC would soon crack down on companies that may not be following the FTC’s prior digital privacy recommendations. Before the FTC’s new Mobile Privacy Disclosure staff report was released, Apple, Facebook, and Microsoft teamed up to create a new initiative to educate app developers about digital privacy. The program is called ACT 4 Apps and it plans to create an environment where app developers may interact with privacy experts to learn how to abide by state and federal privacy laws.

The announcement that the FTC has fined social networking app Path $800,000 for alleged privacy violations along with this new staff report continues to demonstrates that the FTC is spending considerable resources on digital privacy issues. When the FTC announced last August that Google agreed to pay a $22.5 million dollar fine for misrepresenting to users of Apple’s Safari Internet browser that it would not place tracking “cookies” or serve targeted ads to those users that should have been a wake up call to the digital industry that their business practices may be more heavily scrutinized. December’s announcement that the FTC adopted final amendments to the Children’s Online Privacy Protection Rule (COPPA) to strengthen kids’ privacy protections should have been recognized as a signal by the digital industry that it must become more proactive in protecting the personal data of its users.

This newly released staff report recommends that mobile platforms should: provide just-in-time disclosures to consumers and obtain their affirmative express consent before allowing apps to access sensitive content like geolocation; consider providing just-in-time disclosures and obtain affirmative express consent for other content that consumers would find sensitive in many contexts; consider developing a one-stop “dashboard” approach to allow consumers to review the types of content accessed by the apps they have downloaded; consider developing icons to depict the transmission of user data; promote app developer best practices; consider providing consumers with clear disclosures about the extent to which platforms review apps prior to making them available for download in the app stores, and conduct compliance checks after the apps have been placed in the app stores; and consider offering a Do Not Track (DNT) mechanism for mobile phone users.

App developers should: have a privacy policy and make sure it is easily accessible; provide just-in-time disclosures and obtain affirmative express consent before collecting and sharing sensitive information; improve coordination and communication with ad networks and other third parties that provide services for apps so the app developers can better understand the software they are using and, in turn, provide accurate disclosures to consumers; and consider participating in self-regulatory programs, trade associations, and industry organizations.

This staff report states that advertising networks and other third parties should: communicate with app developers so that the developers can provide truthful disclosures to consumers; and work with platforms to ensure effective implementation of DNT for mobile platforms.

The overall theme of this staff report is that the mobile apps industry must do a better job of communicating to its users what data is being collected and how it is being utilized. If mobile apps stakeholders do not move in a timely manner to implement the recommendations in this report more regulation may be required to protect the personal privacy of consumers. The bottom line is that the FTC may closely monitor how stakeholders react to its recommendations to determine if more regulation may be required to protect the digital privacy of users.

While mobile apps offer some great benefits and exciting new ways to interact with others, there are tremendous privacy issues that need to be addressed. Mobile ecosystem gatekeepers and app developers need to work with regulators and lawmakers to protect the personal privacy of mobile app users and to ensure that the industry does not become over-regulated.

To learn more about these issues you may contact me at http://shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Notre Dame, Manti Te'o, Catfishing, Online Impersonation, and the Law

noreply@blogger.com (Bradley Shear) — Thu, 17 Jan 2013 14:37:00 +0000

Notre Dame has one of the most storied college football programs in the country. From the Gipper to Knute Rockne to Ara Parseghian to Rudy to Joe Montana, Notre Dame has a great reputation for winning with mystic and honor. Unfortunately, a recent incident may temporarily tarnish Notre Dame's reputation.

Notre Dame's biggest star Manti Te'o who led the Fighting Irish to the BCS championship game this year and was 2nd in the recent Heisman Trophy voting was allegedly a victim of an online hoax. During this past season, Manti Te'o's grandmother passed away and then within the same week his alleged girlfriend also died. Having more than one person you are close with die in such a short period of time may be very difficult to handle and Manti Te'o received a tremendous amount of media attention during this past season partly because of it, and because he was the biggest star on the Notre Dame football team.

There were many red flags about this story that the media and Manti Te'o should have picked up on months ago. Unfortunately, it appears that Manti Te'o did not realize he had been allegedly catfished until recently. According to the Urban Dictionay, catfishing occurs when someone utilizes social media to create a false identify to pursue an online romance.

In general, catfishing is not against the law. Multiple states have online impersonation laws that make it a crime to impersonate an actual person. However, both California and Washington state's law focus on impersonating real people and not those who are part of someone's imagination. Other states such as Arizona are also trying to pass legislation banning online impersonation. Unfortunately, some of these laws may infringe on the First Amendment and may eventually be declared unconstitutional.

This incident may cost Manti Te'o tens of millions of dollars in potential earnings. Even though he did not win the Heisman Trophy or the BCS national championship, Manti Te'o had a good story and was a great college player. However, NFL teams who were thinking about selecting him in the upcoming NFL draft may think twice about someone who either fell for an online hoax or who may have been part of an alleged marketing scheme.

Until all of the facts have been verified it is too soon to determine whether Manti Te'o was catfished or he intentionally perpetuated misinformation for personal gain. I am giving Manti Te'o the benefit of the doubt at this point because it appears that he was at some point a victim and continued to be a victim of a cruel joke for a period of time. Manti Te'o may have continued perpetuating the misleading statements about his alleged girlfriend after learning the truth out of embarrassment that he fell for it.

Unfortunately, NFL teams and potential sponsors may not want to spend millions of dollars on someone who was allegedly duped in such a public manner. Despite this incident, I believe an NFL team may take a chance on Manti Te'o because he may have a chip on his should to prove this incident was an aberration and that he has the talent to become a great NFL player.

Until all the facts have been verified, it is too early to determine if an online impersonation law may apply to this situation. There are reports that the photograph(s) of a real person was utilized; if so, that may help determine if an online impersonation law may be applicable.

The bottom line is that one must always be careful when dealing with others online and if someone doesn't have a phone and/or can't meet you in person that may indicate you are being catfished.

To learn more about these issues you may contact me at http://shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media Monitoring NCAA Student-Athletes May Create Legal Liability in Excess of $100 Million Dollars

noreply@blogger.com (Bradley Shear) — Wed, 16 Jan 2013 20:24:00 +0000

In the past 6 months, California, Michigan, Delaware, and New Jersey have enacted laws banning school athletic departments from requesting or requiring their student-athletes verify their social media/digital media usernames/passwords and/or install cyberstalking software onto their personal accounts or devices. Many other states along with Congress have introduced legislation to ban these practices to protect schools from legal liability and to protect the personal privacy of students.

Unfortunately, some companies/"social media experts" are approaching NCAA schools and intentionally misleading athletic departments about their experience, their understanding of NCAA compliance, and their knowledge of state and federal law. Some of these companies may claim that their "social media monitoring" services "respect privacy", or "promote compliance", or they "never ask for passwords" or that their services"facilitate education". These claims are misleading and may create tremendous legal liability for NCAA athletic programs that engage any of these companies.

The legal liability of engaging a social media monitoring company to digitally track a program's student-athletes or employees may be tens of millions of dollars. Anyone who disagrees with this analysis needs to review the facts about the Penn State Jerry Sandusky scandal. Emails from 10 plus years ago destroyed the careers of several well respected members of the Penn State administration/faculty and may cost the school more than $100 million dollars in fines/legal fees/judgements/settlements, etc..

Digital evidence (emails) was key in the Freeh Report which the NCAA appears to have relied on to levy a $60 million dollar fine against Penn State. The total cost of this terrible scandal to Penn State may reach $150-$200 million dollars. Absent the digital evidence, the Freeh Report may have reached a different conclusion, the NCAA may not have had the evidence to support a fine and other sanctions, and plaintiffs may have a hard time proving Penn State knew about Mr. Sandusky's behavior.

Do schools and athletic department employees want to monitor and archive potential evidence that may be discoverable and utilized against them in lawsuits? The bottom line is that NCAA athletic departments should not engage services that may harm their interests and put them in a position that may create tens or hundreds of millions of dollars in legal liability.

To learn more about these issues you may contact me at http://shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Norway's Consumer Ombudsman: Facebook Generally Agrees it Has a Counterfeit Goods Advertising Problem

noreply@blogger.com (Bradley Shear) — Mon, 14 Jan 2013 21:19:00 +0000

According to Norway's Consumer Ombudsman, Facebook has a problem with counterfeit goods and scamming schemes being advertised on its platform. On November 6, 2012, Norway's Consumer Ombudsman held a meeting with Facebook's representatives and the topic of discussion was misleading advertising for counterfeit goods and scamming sites on its website.

Norway's Consumer Ombudsman's position appears to be that Facebook allows onto its website a significant number of ads for web shops and scamming schemes that are in violation of the Norwegian Marketing Control Act (MCA). These finding are very troubling and may indicate that Facebook may need to spend significantly more to comply with Norway's Marketing Control Act.

How much more will Facebook need to spend to comply with Norway's law will depend on the depth of problem. However, it appears that Facebook's screening process may also fall short here in the United States. I have personally reviewed hundreds of suspected ads for counterfeit merchandise on Facebook so I believe this may be a much larger challenge than many realize.

Does Facebook have a Google pharma ad problem on its hand? In 2011, Google agreed to pay a $500 million dollar fine to avoid prosecution due to displaying advertisements from Canadian pharmacies which illegally sold prescription drugs to American consumers. An important question in the Google case was did it intentionally turn a blind eye to the matter? Is Facebook intentionally turning a blind eye regarding advertising for counterfeit merchandise on its platform?

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Survey Says: Parents Care About Online Data Privacy in Their Children's Schools

noreply@blogger.com (Bradley Shear) — Thu, 10 Jan 2013 18:16:00 +0000

A Brunswick Insight survey was released earlier this week regarding digital privacy issues that affect school students. The online survey was conducted between August 25-28, 2012 and questioned 1,035 American adults who had children in grades 1-12. The survey's margin of error was +-3% at the 95% confidence interval.

The overall findings of the survey strongly indicate that U.S. parents care deeply about the digital privacy of their children. The survey results demonstrate that a national conversation is needed regarding student privacy in the Digital Age.

Overall, 93% of parents surveyed expressed concern regarding online tracking of their children. A majority of parents questioned (54%) stated they were "very concerned" about online advertising companies tracking the email and Internet usage habits of their children while in school in order to target them with Internet advertising. Even though more than nine in 10 parents surveyed were concerned that at some schools online advertising companies may be tracking the email and Internet usage habits of children in order to target them with digital advertising, almost half (49%) of parents stated they have heard "nothing at all" about this issue.

An overwhelming majority (92%) of parents agreed that school boards that accept free email services from advertising firms should require the companies to offer a privacy policy expressly designed for school children that provides strict guarantees against user profiling or web tracking. In addition, 90% of parents surveyed agreed that school boards that accept free email services from advertising firms should insist on contracts that expressly ban the use of children's email for ad-related purposes, including targeting of ads outside the email service. Furthermore, 87% of parents indicated that school boards that accept free email services from advertising firms should insist on contracts that expressly require that all advertising functionality, even if purely optional, be completely removed from the software.

Interestingly, 84% of parents questioned stated that they would be likely to take action against online tracking in schools and 50% of those questioned stated they would be "very likely" to take action. Potential action that was listed in the survey's questionnaire included speaking out at a PTA meeting or calling a school official. This aspect of the survey was very telling because it indicates that parents are willing to take affirmative steps to protect the digital privacy of their children.

During the past year, parents across the United States have gone from indicating in surveys that they would be likely to take action to protect the digital privacy rights of their children to taking affirmative steps to stop practices they believe harm the digital privacy and safety of their children. For example, parents in Delaware, California, New Jersey, and Michigan have worked to ban schools from being able to request or require students provide access to their personal digital accounts so schools may track their students' personal digital activities.

Parents and public school students in Texas have protested against being required to wear school identification badges embedded with RFID chips that digitally track their movements while at school. In Maryland, parents' outrage over schools that were utilizing palm scanners to obtain biometric data from students to pay for school lunches and potentially track the eating habits of students recently led to the termination of the program. The bottom line is that parents are willing to openly protest and take legal action against practices they believe may be putting their children in harm's way.

When parents are provided the tools and opportunity to make informed decisions they act to protect the data privacy and safety of their children. The findings of this Brunswick Insight survey indicate that more information and transparency is needed so parents may be able to learn more about these issues so they can take the appropriate steps necessary to protect their children's digital privacy and security.

To learn more about these issues you may contact me at www.shearlaw.com.

Michigan Bans NCAA Schools From Cyberstalking Student-Athletes

noreply@blogger.com (Bradley Shear) — Sun, 30 Dec 2012 17:14:00 +0000

Michigan has joined the growing list of states that have banned schools from requiring their student-athletes to register and/or provide access to their personal email/social media credentials and content. Michigan joins Delaware, California, and New Jersey in banning NCAA schools from requiring their students to verify their personal digital accounts in order to apply or attend school, keep their scholarships, or participate in intercollegiate athletics.

Michigan's legislation is the most comprehensive in the country because it also bans elementary, middle, and high schools from also requiring their students to turn over their personal digital account information. In a nutshell, the new law generally bans all schools from requesting their students provide them access to their personal social media/digital media usernames, passwords and/or content. This policy affirms that the state of Michigan will not allow its schools to act like China who is requiring its citizens to register their personal digital accounts so the government may "monitor" everything their citizens do online.

Michigan's legislation may save Michigan schools tens of millions of dollars per year that may have been utilized to contract with companies that offer cyberstalking services to track the digital activities of students, their families, and friends. The companies that sell cyberstalking software to schools use terms like, "monitoring", "educating", and "leading" when describing their services, and/or companies. In addition, if you perform due diligence on the founders of the companies that offer these so called "monitoring" or "educating" services you may notice they have no verifiable professional credentials that demonstrate that any sports (college, amateur, or professional) organization should engage them for social media or education related services.

Some of these companies are also stating that they support social media privacy legislation which if true means they support a ban on their cyberstalking services. In order for any social media "monitoring" (cyberstalking) software to properly work it needs a student to verify his personal digital credentials. Absent student verification these services will not work.

Any public school that engages a firm to "monitor" (cyberstalk) their students online may in the near future receive a letter from their state's attorney general, the U.S. Department Education, the U.S. Federal Trade Commission, or a law firm regarding their practices. Schools that "monitor" (cyberstalk) their students online may soon encounter steep fines, lawsuits, or a loss of education funding that may amount to tens of millions of dollars.

The bottom line is that public schools that engage self-described "social media experts"/"social media education & monitoring services"/"social media protectors of reputation" may create tremendous personal safety and privacy problems for their student-athletes, and massive legal liability issues for their institutions and taxpayers.

To learn more about these issues you may contact me at www.shearlaw.com.

(Full Disclosure: I advised Michigan Rep. Arc Nesbitt's office on HB 5523)

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

UK To Revise Social Media Speech Prosecution Guidelines

noreply@blogger.com (Bradley Shear) — Sun, 30 Dec 2012 13:18:00 +0000

The UK recently announced that it would revise its prosecution guidelines to make it more difficult to bring legal action against those who create offensive posts online. This announcement is welcome news for the freedom of speech.

During the past couple of years, there has been several high profile prosecutions of people making racist or insensitive comments to others online. While these comments may be offensive, racist, or distasteful, in general they would not have been prosecuted if they occurred in the United States and were directed towards U.S. citizens living in the U.S. at the time the comments were created.

The United States is the greatest protector of free speech. In the United States, the general test for whether free speech crosses the line for criminal prosecution is whether the content is directed at inciting, and is likely to incite, imminent lawless action.

The UK's Crown Prosecution Service has released its interim social media prosecution guidelines and they can be found here. Those who are interested in making public comments about the interim guidelines may do so until March 13, 2013.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.