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.
Justia columnist and U. Washington law professor Anita Ramasastry comments on the legal implications of Facebook’s reported plan to allow under-13 children to join the site. (Officially, under-13 children now cannot join, although that policy is often honored in the breach.) Ramasastry comments on why Facebook is now seeking out the under-13 crowd; notes the strictures of the Children’s Online Privacy Protection Act (COPPA) and how they may apply here; and describes how the Federal Trade Commission (FTC) has enforced COPPA against other websites in the past. Ramasastry also comments on some of the possible downsides of letting under-13 children officially join Facebook, if that becomes possible—including children’s immaturity when it comes to posting, and the ways in which Facebook may use children’s information, in part by marketing to them. She also raises the question whether Facebook users will truly want a Timeline that lasts a lifetime, or whether they may want to ignore or forget some of the indiscretions and immaturity of their youth. Finally, Ramasastry advises parents on measures they may want to take soon, before the new under-13 Facebook kicks in.
Justia columnist and former counsel to the president John Dean comments on a new proposed New York statute, the Internet Protection Act, which would provide a remedy for those who are the targets of anonymous Internet attacks—including the victims of cyberbullies, and businesses harmed by competitors’ fake reviews. Dean notes that the Act has drawn much criticism, but he argues that the focus of comments on the Act should not be to attack the Act, but rather to offer constructive criticism as to how the Act can be made consistent with the First Amendment. Dean summarizes the First Amendment arguments that have been raised regarding the Act; cites two key Supreme Court anonymous speech cases; notes that it is often possible to unmask cyberbullies without breaking the law, but it takes time and money to do so; and contends that a constitutional way to address cyberbullying would be through a law allowing the unmasking of the perpetrators of Internet harassment, and the issuance of a protective order against them. Even the deterrent effect of such a law, Dean predicts, could be powerful.
Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent First Amendment/Internet law ruling from a Utah-based federal judge. As Ramasastry explains, the ruling limited the scope of a a Utah law that (1) criminalized knowingly or intentionally disseminating harmful content to minors over the Internet, and (2) required website operators to tag or label such content in such a way that the tags or labels can be picked up by search engines. Ramasastry argues that the court struck the right balance by upholding but clarifying the first part of the law, and striking down the second part on First Amendment grounds. When it comes to screening content, she adds, the best solution is not a legal one. The better solution is, she argues, for parents to select screening software if they so choose; and for parents to have a serious talk with their kids to prepare them to deal psychologically with the kind of explicit material that they are likely to see, one way or another, even if parents do install screening software on all home computers.
Justia columnist and attorney Julie Hilden comments on a recent decision from an Eastern District of Virginia federal judge, who effectively held that the use of the “Like” icon on Facebook is not protected by the First Amendment. The case arose when the employees of a sheriff who was up for re-election decided to “Like” his opponent’s Facebook page. Once the sheriff was re-elected, he fired those employees (as well as others). But the fired employees who had used the “Like” icon sued, arguing that the sheriff had illegally fired them for the exercise of their First Amendment rights. Hilden takes issue with both the judge’s decision to rule against the fired employees, and his approach to the case, which caused him to refuse to interpret what the Facebook “Likes” meant. Citing Supreme Court precedent, Hilden notes that the High Court has often protected and interpreted symbolic speech, and that the Court, in the recent case of Morse v. Frederick, has interpreted the meaning of ambiguous speech as well. She thus concludes that the judge should have both interpreted the “Likes,” and also held that they were First Amendment-protected.
Justia columnist Anita Ramasastry comments on the legal issues that may arise from MissTravel.com, a website that says that it matches “generous travelers who hate to travel alone with attractive travelers who would love the opportunity to travel the world for free.” The site has been compared to an online escort service, although the site itself argues that the analogy is unfair. Ramasastry considers the legal issues that may arise from the Miss Travel site—focusing both on (1) whether the site could get in trouble if illegal activity ensues, and (2) whether there is any recourse if the companion of the “generous traveler” gets into hot water when the two are overseas. Ramasastry also notes that state Attorneys General have gone after online escort ads’ host sites, but that such sites are generally immune from civil liability for user postings under the Communications Decency Act (CDA). Still, Ramasastry notes, under certain circumstances such sites might be hit with criminal charges if they knowingly induce prostitution. She notes, however, that Miss Travel is importantly different from such sites.
Guest columnist and Justia writer and editor David Kemp comments on a new development on Facebook: users’ ability to add the fact that they have become organ donors as a “Life Event” on their Timelines. Kemp notes that the reason for this development is to encourage organ donation after death—and that it’s been very successful in doing so. He also comments on three likely reasons why Facebook chose this particular cause, as opposed to all the other causes that it might have promoted. While applauding the feature’s benefits, Kemp also considers some risks connected to the use of Facebook in this way—including the risk that other medically-related applications may lead to the disclosure of private health information, which could potentially implicate federal privacy laws. (Already, the “Life Events” application, Kemp points out, can reveal a broken bone or weight loss.) Ultimately, Kemp raises the question whether Facebook may evolve in such a way as to provide not just social networking, but also social engineering.
Justia guest columnist Anjali Dalal, Postdoctoral Associate in Law and Google Fellow, Information Society Project at Yale Law School, comments on the Cyber Intelligence Sharing and Protection Act (CISPA). Dalal argues that while cybersecurity is a very genuine concern for the U.S., CISPA’s approach is not the way to address that concern. Dalal makes four key points to support her thesis, contending that (1) CISPA could reach common, otherwise legal Internet activities; (2) that information received from private companies under CISPA could be used for purposes other than cybersecurity; (3) that CISPA appears to effect an end-run around the Fourth Amendment; and (4) that CISPA subordinates civil-liberties protections to national security concerns. Dalal also describes the next steps that we are likely to see in the battle over CISPA.
Justia columnist and U. Washington law professor Anita Ramasastry comments on the phenomenon of Internet mug shot galleries. Unlike a Megan’s Law database, Ramasastry explains, these galleries show photos of arrestees, who have not yet been, and may never be, convicted of any crime. That raises fairness issues, Ramasastry argues. Moreover, she notes that not only police departments, but also private companies, collect such photos together into mug-shot galleries. Because the private companies’ galleries tend to dominate search results, arrestees have no recourse except to pay the private companies to take down the photos. Because of issues like these, Ramasastry argues that this is an area that is ripe for reform—for you can now be exonerated in court, but not on Google. She also briefly discusses the phenomenon of police departments putting mug shots on their Facebook pages.