Articles Posted in Technology Law

Justia columnist and attorney Julie Hilden comments on a case of online defamation, in which a doctor sued a patient’s son for the son’s harsh online reviews regarding the doctor’s care of the patient's father. The Minnesota Supreme Court ruled that none of the statements in the son’s reviews could be sued upon, either because they were substantially true, because they were not capable of defamatory meaning, or because, in one case, the statement at issue was a statement of pure opinion. Hilden explains why the online-review-writer prevailed here, and notes some other reasons why online reviews may or may not successfully be sued upon.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the legal issues regarding debt collection and social media. As Ramasastry explains, certain debt collectors currently take to social media to harass debtors after first posing as, for example, a Facebook friend. Ramasastry describes the current law regarding how debt collectors may operate, and the alterations in the law that will likely be enacted in the near future, in order to accommodate the technological changes that have occurred since the initial debt-collection laws were put in place, long before the advent of social media.

Justia columnist and U. Washington law professor Anita Ramasastry discusses the way in which Section 230 of the Communications Decency Act (CDA) has unintentionally offered a safe harbor to websites on which people’s exes post nude or other intimate photos that were taken during the course of a relationship, and that were intended by the subject of the photo to be forever kept private. Ramasastry notes how adding additional information to the photo, such as a home address, could be a crime, as it aids cyberstalking. In addition, she urges that Congress ought to amend Section 230 in order to prevent unintended negative consequences like these.

Justia columnist and Cardozo law professor Marci Hamilton comments on the confluence of forces that have made the victories in the fight against child sex abuse possible. Among the key factors, Hamilton argues, are the end of the old boys’ network; survivors who are empowered by the justice system; and revelations that go public far more quickly than they could have prior to the Age of the Internet, when victims and critics of abusers have a strong, far-reaching voice and the ability to recruit allies and supporters. With all these developments, together, sparking public outrage, Hamilton notes that even previously untouchable football institutions can be made accountable—noting, for instance, the crimes toward a young woman in Steubenville, Ohio, by members of that town’s team.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the photo-sharing site Instagram’s controversial change to its Terms of Service (ToS), which has had some users up in arms—mainly because of a term that would allow Instagram to share a user’s photos with Facebook (which owns Instagram) and marketing affiliates for the purpose of creating paid advertisements, with the revenues going to Instagram, and not the photo owner. Due to the controversy, Instagram has a new ToS, but Ramasastry contends that the new ToS is also problematic for its own reasons.

Justia columnist and U. Washington law professor Anita Ramasastry comments on Senator Al Franken’s proposed legislation that would regulate cyberstalking and geolocation apps—some of which are installed in a given device without notice of their presence being provided to the user. As Ramasastry explains, some of the chief concerns in this area of law include the possible stalking of domestic violence victims, and the safety of children. As Ramasastry explains, this topic not only sparked Franken’s interest, but also is of interest to the FTC, and the Senate Judiciary Committee.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the new couples pages feature on Facebook, which aggregates a Facebook user’s information with that of his or her self-designated significant other. Ramasastry notes that the feature has been controversial, and explains why some users have been upset by it. She notes, too, that Facebook is entering a privacy gray area with the couples pages feature, under which Facebook relies on its privacy policies, but users feel they have lost control. Moreover, Ramasastry suggests that the Electronic Privacy Information Center (EPIC), which previously criticized Facebook’s Timeline feature, may want to scrutinize Facebook’s couples pages feature as well. Finally, Ramasastry questions whether Facebook’s couples pages are permissible under Facebook’s recent settlement with the FTC.

Justia columnist and attorney David Kemp comments on the legal and ethical issues raised by self-driving cars and surgical robots. He describes current tort (including personal injury) and products liability law, and discusses why these bodies of law may fall short in addressing these technological innovations. Kemp introduces several hypotheticals to illustrate both the legal and ethical issues presented. In addition, he suggests that we should establish dynamic legal and ethical frameworks to keep up with new technologies, and encourages the law—and ethics—to begin to focus not on parties’ individual liability, but rather on the entire system of persons, machines, institutions, and governments that are relevant to a given instance in which something has gone wrong, and injury has occurred.

Justia columnist and attorney David Kemp comments on the now-notorious false tweets regarding Hurricane Sandy sent by Shashank Tripathi (Tripathi is a hedge fund analyst and was previously the campaign manager for Republican Christopher Wight's Congressional campaign; he has since been fired.) While many have excoriated Tripathi's tweets as unethical, Kemp addresses the separate question whether they can be penalized consistent with the First Amendment. Thus, Kemp covers past and current Supreme Court precedents that relate to other instances of false and/or damaging speech.

In Part Two in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb continues to address the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Specifically, here in Part Two, Colb considers the two possible ways in which the Supreme Court uses the phrase “reasonable expectations of privacy” in practice in Fourth Amendment cases. In the phrase, Colb notes, “reasonable” may mean “empirically realistic,” but it also may mean “morally justifiable.” Colb gives examples of Supreme Court and Sixth Circuit cases in which the phrase is used in these two different ways. In addition, she examines the exclusionary rule’s role here—noting that the rule, which forbids evidence from being admitted in court if it was obtained unconstitutionally, may in concrete cases seem to simply help out criminals, but at a more abstract theoretical level, protects us all from police misconduct. Colb also predicts that the Supreme Court will need to revisit these issues sooner, rather than later, to ensure that the law is clear.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the use of biometrics in school lunch lines and elsewhere in schools. More specifically, she notes, schools are using an infrared scanner that identifies children’s unique palm and hand vein patterns, and converts these patterns into an algorithm through which the child can be recognized quickly and uniquely by a hand scan. Ramasastry raises privacy concerns about this kind of scanning: Could it lead kids to see other compromises of their privacy as commonplace? Will the databases that contain the scans be used for other purposes—even when the kids become adults? Might law enforcement attempt to use the databases of the hand scans? And what about parents with religious objections to schools’ using the hand scans on their children? At the very least, Ramasastry suggests, the scanning system should be “opt in” and not “opt out,” so that parents can think carefully about allowing their children to become part of the scanning system, and thus part of the related database.

In Part One in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb discusses the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Previously, Colb explains, the U.S. Supreme Court held in United States v. Jones that police need a warrant and probable cause to attach a global positioning device to a vehicle and thereby track a suspect’s whereabouts. But now, the U.S. Court of Appeals for the Sixth Circuit has held that police may, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Colb examines the legal concepts that the Supreme Court and Sixth Circuit decisions invoke, including those of trespass, and of privacy, and comments on the court’s analysis.

Justia columnist and U. Washington law professor Anita Ramasastry comments on regulatory responses in the EU and the U.S. regarding Facebook’s facial-recognition tool, which suggests the identities of registered Facebook users for possible tagging by other users in uploaded photos. As Ramasastry explains, the tool has sparked concern by EU regulators due to privacy worries, and even in the U.S., Facebook has voluntarily—but perhaps temporarily—suspended the tool. Ramasastry notes some reasons why Facebook users may have concerns about the tool, including its accompanying archive of tagged photos, which could in theory be used for law-enforcement, intelligence, or other purposes that users never authorized. In the EU, Facebook has agreed to soon stop using the tool, and to delete related data. But what will happen with the tool and the resulting database, here in the U.S.? With complaints from the Electronic Privacy Information Center (EPIC), a leading NGO, and a complaint filed with the FTC, the facial- recognition tool is now in hot water in the U.S. as well as the EU.

Justia columnist and U. Washington law professor Anita Ramasastry comments on a federal-court class-action lawsuit against Match.com that had been brought by disgruntled daters who alleged that Match.com engaged in deceptive trade practices, and breached its contract with its users. In particular, users have complained that after they joined the site, they found that it contained numerous profiles that were inactive, and numerous others that were merely spam. After analyzing the site's Terms of Service (ToS), however, Ramasastry concludes, as the court did, that Match.com did not violate its ToS, nor did it engage in deceptive trade practices. Ramasastry therefore warns Internet users who seek to join pay sites, to first look very carefully at what the ToS do—and do not—actually promise, before signing up. Finally, Ramasastry notes some of the guidelines for dating online that the Better Business Bureau (BBB) has developed.

Justia columnist and U. Washington law professor Anita Ramasastry discusses the problem of jurors’ using social media to research—or even communicate with others about—the trials on which they serve. Ramasastry offers statistics and examples regarding the nature and frequency of the problem of juror social-media use, and discusses the new model jury instructions addressing this issue. She also covers some egregious instances of jury misconduct in this area, and considers whether instituting a new rule of peer policing by jurors, of other jurors’ social-media use, will turn out to be a good idea in the end. In particular, Ramasastry expresses considerable concern about the propriety of judges’ mandating peer-to-peer juror policing regarding social-media use, and thus potentially altering natural jury dynamics.

Justia columnist and U. Washington law professor Anita Ramasastry comments on instances of usage-based insurance (UBI), and warns of the risk of using this kind of technology until and unless it is carefully regulated. UBI programs use up-to-the-minute data on drivers, and safe drivers get discounts as a result, but UBI systems may also raise privacy concerns. Ramasastry focuses especially on Progressive Insurance’s “Snapshot” program, which showed that actual driving behavior is the best predictor of all of driver risk. Ramasastry suggests that UBI programs need to be closely regulated in order to ensure that the information they glean about drivers is not put to other uses, to which drivers did not specifically and carefully consent. While Progressive itself does not use GPS, but instead depends on other driving-related information, Ramasastry notes that other companies may well require GPS tracking in the future, or may offer it in exchange for lower rates.

Justia columnist and U. Washington law professor Anita Ramasastry comments on legal issues regarding the “Yes Men”—a group that creates faux websites and events in order to take aim at corporations, and other entities, the actions of which they oppose. While parody is strongly protected under Supreme Court precedent, Ramasastry notes that the Yes Men’s work is somewhat different from traditional parody, which makes the difference between the parody and its target very clear, very quickly. Ramasastry suggests that in the future, the Yes Men’s strategy may be tested, for the Yes Men’s actions may cause more confusion—and for that reason, may not receive, in court, the full protection that clear, non-confusing parodies enjoy. Ramasastry concludes that even if that is the case, this will have little impact on the Yes Men’s strategies—beyond changing the corporate names on their parody sites.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the current use of social-media data in decisions made by employers regarding whether to hire a potential employee, or retain a current employee. While we are used to being judged by our credit reports, the use of our social-media information is much more recent and novel, as Ramasastry explains. And yet, the federal Fair Credit Reporting Act (FCRA), Ramasastry notes, does apply to the use of social-media information—as the company Spokeo recently learned, when it was subject to a Federal Trade Commission (FTC) enforcement action and a hefty fine, based on its use of social-media information. Ramasastry discusses the possible issues with, and ramifications of, this fairly novel use of social-media information in employment decisions, and explains how current federal law may apply.

Justia columnist and U. Washington law professor Anita Ramasastry discusses two controversial online business practices: steering, and differential pricing. Steering, which the travel site Orbitz has used, directs potential customers to options that they may be likely to choose, based on other information the site knows about the customer — for instance, whether he or…

Justia columnist and U. Washington law professor Anita Ramasastry comments on the lessons to be learned from the recent experience of Skout, which initially offered teen and adult flirting sites and apps. In the wake of three separate allegations by teens of rape by an adult whom they met via Skout and who was posing as a teen on the site, Skout has closed down its teen site and app. Ramasastry notes that Skout was always vigilant about the risk of adults impersonating teens, but vigilance, in the end, wasn’t enough. Thus, Ramasastry raises the possibility that society—and especially teens’ parents—should discourage teen meet-up business models that carry the kind of risks that Skout’s teen site did.