Analysis and Commentary on Technology Law

Catching Warlords via Viral Videos: A Film About Joseph Kony Offers Us a New Vision of How to End Impunity

Justia columnist and U. Washington law professor Anita Ramasastry comments on the “Kony2012” 30-minute video, which recently received over 75 million views on YouTube and film-sharing site Vimeo—with even the White House taking notice. As Ramasastry explains, the video is a profile of the brutal warlord Joseph Kony, leader of the Lord’s Resistance Army, who is wanted by the International Criminal Court for his war crimes. Kony, a native Ugandan, mounted a war against Uganda’s government, using tactics including the recruitment of child soldiers and the commission of atrocities. Ramasastry covers Kony’s crimes; notes the praise for, and criticism of, the “Kony2012” video; and concludes that, despite some drawbacks and criticisms, the “Kony2012” video has proven to be an effective way to exert pressure for justice to be done.

A Louisiana Federal District Court Judge Strikes Down a Law Banning Registered Sex Offenders From Accessing Facebook and Other Social-Networking Sites Was It The Right Call?

Justia columnist and attorney Julie Hilden comments on a recent Louisiana federal district court decision striking down an extremely broad and vague law prohibiting registered sex offenders from accessing a large variety of websites. Hilden argues that the judge’s decision, which followed a bench trial, was plainly correct under First Amendment case law. Accordingly, she contends that Louisiana Governor Bobby Jindal is likely using the law, which he signed, and the decision, which he has vowed to appeal, for political purposes. Hilden also raises the questions whether any law restricting Internet access for ex-offenders could pass muster; if so, what it might look like; and whether individual websites’ policing themselves—or creating separate sections for adults and children—might be part of the solution.

Should Target Tell Your Loved Ones You Are Pregnant, Or Should You? The Perils of Consumer Data Aggregation, Including Loss of Privacy

Justia columnist and U. Washington law professor Anita Ramasastry considers the sometimes disturbing ways in which retailers—both brick-and-mortar or online—use consumer data. Beginning with a New York Times story that related how a father learned of his teenage daughter's pregnancy when Target started sending her baby-related coupons, Ramasastry suggests that regulation is necessary if consumer privacy is to be protected, and that such regulation probably should render certain areas of private information strictly off-limits. Ramasastry discusses the Obama Administration's proposed set of consumer-privacy principles, called the Consumer Privacy Bill of Rights, and notes that the Administration's stance is that if Congress will not enact such principles into law, then the FTC has the power to enforce them via regulation. Ramasastry also discusses what, specifically, such principles could mean for retailers like Target. Finally, Ramasastry discusses existing websites that can help consumers protect their online privacy.

Divorce, Digital Identities, and Virtual Property: Who Gets Your Facebook Friends and Farmville Dollars When You Split Up?

Justia columnist and U. Washington law professor Anita Ramasastry addresses the intersection of divorce, digital identities and virtual property. In the course of her analysis, she asks an interesting question that is likely to become more and more prevalent, as virtual property becomes ever more popular and more valuable: When a couple is divorcing, what happens to their virtual property? Ramasastry also notes the role that Facebook has played as a cause or factor in many divorces, and considers the questions of whether, and how, virtual property should be divided in divorce proceedings. Moreover, noting the increasing use of social-networking activity in such proceedings, Ramasastry suggests that it's wise to be less social online—especially regarding new relationships—while divorce proceedings are still ongoing.

SOPA and the Future of Internet Governance

Justia guest columnist and Temple law professor David Post offers a clear, detailed explanation of SOPA (and similar bills), and the reasons why they eventually failed—and, Post argues, should have failed. As Post explains, SOPA’s aim was to reduce or eliminate access to websites that are dedicated to infringing activities, and are operating outside of U.S. borders. (Such offshore websites offer, for example, copyrighted music or movies for download, or sell knockoffs of trademarked products, all without proper authorization from the rights holder.) Post explains why SOPA failed, noting that it would have done damage to the technical infrastructure of the Internet. For that, and other reasons—including SOPA’s disregard for due process when it comes to foreigners and their sites—Post argues that SOPA’s plan for Internet law enforcement, based on seizing and sanctioning domain names, is deeply flawed.

Facebook’s New Timeline Feature: Will It Increase Users’ Risk of Identity Theft?

Justia columnist and U. Washington law professor Anita Ramasastry comments on Facebook's new, mandatory “Timeline” feature, and the possibility that this feature may make identify theft targeted at Facebook users easier to accomplish. As she explains, Timeline encourages users to volunteer additional information, beyond what they had previously provided to Facebook. Also, Timeline will work in conjunction with a set of “frictionless” apps that will not notify the Facebook user each time his or her information is shared with a person or business With more and more information about people becoming available online on sites like Facebook, Ramasastry argues, both online and offline identity theft may well become simpler and more common.

The Supreme Court’s Decision in Golan v. Holder: Can the U.S. Government Constitutionally Pull Works Out of the Public Domain?

Justia columnist and attorney Julie Hilden comments on the Supreme Court’s recent decision in Golan v. Holder, which allowed certain works by foreign authors to be pulled out of the U.S.’s public domain, and put under U.S. copyright protection. The works’ status had been changed by statute, so that the U.S. could comply with an international treaty. Drawing heavily on its prior copyright-extension decision in Eldred v. Ashcroft, the Court allowed the works at issue in Golan to be newly subjected to copyright—despite arguments to the contrary that were based on the Copyright and Patent Clause, and on the First Amendment. In dissent, Justice Breyer, joined by Justice Alito, argued that the public-domain works at issue ought to retain their current status, due in part to First Amendment concerns; in part to practical problems, such as problems with “orphan works,” the copyright status of which is difficult and costly to determine; and in part to a utilitarian reading of the Clause.

Facebook’s “If I Die” App Should Remind Us That We Each Need a Digital Death Plan

Justia columnist and U. Washington law professor Anita Ramasastry points out that even if we are using the “If I Die” app, which allows Facebook users to send a final message to loved ones, there are many other aspects of our digital lives that will also need attention when we die, and for which we should also plan. Ramasastry covers the provisions for user death in the Terms of Service (ToS) of popular online services such as Yahoo!, Gmail, Facebook, Apple, and YouTube. She also considers questions relating to the inheritance of digital property ranging from copyrighted online work, to virtual property with real-world value. Ramasastry also comments on why one might want to use a “digital undertaker” service; on the need to amend states’ law across the country in order to protect virtual property; and on the state-law question whether the rights of privacy and publicity can—and should—survive a person’s death.

Cyberbullying on Twitter, Part Two: Essential First Steps to Take When Dealing With a Bully

Justia columnist and former counsel to the president John Dean continues his series about cyberbullying and harassment on Twitter. In this installment, Part Two in the ongoing series, Dean comments on possible ways to end and/or punish Twitter bullying. Dean notes that the large majority of Twitter users are friendly and amicable, but points out that there are also a few malcontents on Twitter. These users, he explains, engage in calculated efforts to hurt, embarrass, falsely discredit, or defame others, based on their beliefs or Tweets. How should peaceable Twitter users deal with the troublemakers in their midst? Dean offers interesting advice—based in part on Twitter's own rules and its recommendations for dealing with bullies, and in part on the possibility of invoking outside avenues to address the problem.

Will Insurers Begin to Use Social Media Postings to Calculate Premiums? A Look at Some Startling Trends and the Possible Consequences for Consumers

Justia columnist and U. Washington law professor Anita Ramasastry comments on the potential uses of social networking information in the insurance industry. She notes that if, for instance, a person’s Facebook photos contradict information that the person has told his or her insurer, trouble may result. Ramasastry gives examples such as a claimed non-drinker whose Facebook photos reveal heavy drinking, or a claimed non-smoker who is pictured on Facebook smoking. She notes that when fraud is already suspected by an insurance company, some companies consider it fair game to then check the insured’s social media. Moreover, Ramasastry reports that the next wave of the use of social media in the insurance sector may well involve underwriters, who may begin using such media to create risk profiles of potential insureds. She describes Deloitte’s approach, and explains why using social media is a logical next step for underwriters, who already access massive stores of data regarding potential insureds. Ramasastry also notes some of the risks of these developments—such as an insurer’s taking inferences from a social media profile that are not accurate (say, due to a mistagged photo), or that cannot be fairly generalized (such as a photo of a teetotaler taking a single sip of a drink to be polite).

Should Bloggers Be Deemed Journalists, With the Power to Trigger the Supreme Court’s Favorable Rules Regarding Damages, Invoke Retraction Statutes, and Protect Confidential Sources? A Federal District Judge Offers Some Answers

Justia columnist and attorney Julie Hilden comments on a Portland, Oregon-based federal district judge’s ruling in a case where a key question was when—if ever—a blogger can count as a journalist. The judge, addressing a defamation suit that was brought against the blogger, declined to allow her to invoke two Oregon laws that were meant to protect journalists by (1) requiring potential defamation plaintiffs to give journalists who are potential defamation defendants a chance to correct or retract the allegedly defamatory statements, if the plaintiffs want to recover their full damages; and (2) allowing journalists to protect their confidential sources by keeping them anonymous. In addition, the judge—moving on from Oregon-law issues to federal-law issues—refused to grant bloggers the right to invoke favorable U.S. Supreme Court case law regarding damages unless the bloggers qualified as journalists under the judge’s multi-factor test. Hilden takes issue with both of the judge’s Oregon law rulings, and, to some extent, also with his proposed multi-factor test as to who counts as a journalist.

The Case of the Alleged Twitter Stalker: A Federal Judge Dismisses An Indictment on First Amendment Grounds

Justia columnist and attorney Julie Hilden comments on an interesting decision, issued this month by a federal judge from the U.S. District Court for the District of Maryland, regarding an indictment alleging the violation of a federal anti-harassment statute. Hilden first provides the factual background of the case—in which federal prosecutors alleged that a well-known Buddhist religious leader was being harassed, in violation of a federal stalking statute that is an amended version of part of the Violence Against Women Act (VAWA). She then discusses some of the key issues the case raises, such as whether blog posts or tweets can count as harassment in violation of the statute, even if it is the alleged victim who opts to view the posts or tweets, rather than merely receiving them. With the Electronic Frontier Foundation (EFF) as an amicus, and the federal government seeking to defend a statute that is meant to protect women from harm, Hilden predicts that we have not heard the last of this dispute. She also notes that, in the age of the search engine, the line between seeking out material and coming across it has been blurred substantially, and in turn, the definition of harassment may also be blurring.

Social Networking and Airline Travel: What the Legal Consequences of an Airline’s “Meet and Seat” Program Might Be

Justia columnist and U. Washington law professor Anita Ramasastry comments on the possible legal implications of an airline’s “Meet and Seat” program, which allows passengers to find out information about other travelers, and select the person whom they will sit next to on a flight, based on Facebook profiles and LinkedIn accounts. The upside of the program is that fliers can network with each other, or even have a first date while in the air. But the downside, Ramasastry argues, may be considerable, depending on how the details of the program are fleshed out. Ramasastry anticipates possible problems with fictitious profiles, sexual and other types of harassment, discrimination, and even de facto segregation if groups decide to sit together based on race, religion, or the like. Ramasastry also points to group-then-go charters, made easier by smart phone technology, as a less problematic way to employ social networking to ensure that travelers can opt to fly with people who share their interests and destinations.

Cyberbullying on Twitter, Part One: The Anonymous Cowards

In the first of a series of columns focusing on cyberbullying, Justia columnist and former counsel to the president John Dean takes very strong issue with those who engage in this kind of online intimidation on Twitter—and, particularly, those who do so anonymously or pseudonymously. Drawing on academic studies, Dean begins by specifically describing the nature of bullying and bullies. Carefully distinguishing bullying from genuine and valid criticism, Dean notes that true bullies are often troubled personalities and considers the influences (including biological influences) and choices that play a role in the making of a bully—noting that some of the underlying conditions that influence bullying are actually treatable. He terms the cyberbully who proceeds anonymously or pseudonymously the “uber coward” among bullies, contrasting the cyberbully with the schoolyard or workplace bully. Finally, Dean invites American lawyers to share with him their legal anti-cyberbully strategies.

A Patient Sues His Dentist Over a Contractual Ban on His Posting Negative Online Reviews of Her Work: Why His Class Action Appears to Have Merit

Justia columnist and U. Washington law professor Anita Ramasastry comments on the recent controversy over doctors (and other healthcare providers) who require their patients to sign contracts stating that they will not post reviews of the doctor (or other healthcare provider) on review-and-rating websites, such as Yelp.com and the like. In addition, Ramasastry explains, a clause contained in the contracts at issue purports to transfer the patients’ copyright in any such reviews to the doctor—presumably so that the doctor can have such reviews quickly and directly taken down after they are posted. Ramasastry describes the class action lawsuit that is pending with respect to such contracts, and the allegations of a plaintiff in the suit. She also explains other kinds of challenges to this type of contract that are being made in other venues, and describes several useful websites that seek to inform patients of their rights and options when they are required by their doctor or other health-care provider to sign such a contract.

An Illinois Court Weighs in on the Protection of Anonymous Internet Message Board Speech

When you post an anonymous message on an Internet message board, how anonymous is it, really? Justia columnist and attorney Julie Hilden comments on a recent Illinois state court appellate decision regarding the First Amendment right to speak anonymously. The dispute at issue arose from a number of anonymous comments posted on a newspaper website's message board, and relating in part to a local election. The target of the comments sued for defamation (via his parent, as he was a minor). However, the Illinois court—after clarifying Illinois law pertaining to defamation cases involving an anonymous defendant—found that the statements at issue were not necessarily defamatory, but rather could, and should, be subject to an innocent interpretation. Hilden argues that while the court’s invocation of the innocent-construction rule here was dubious, the court was right to protect the anonymity of the message-board-poster defendant.

Dealing with E-personation: A Recent New Jersey Case Shows Why New Laws Aren’t Really Needed to Address Fake Facebook Profiles and the Like

Justia columnist and U. Washington law professor Anita Ramasastry comments on recently-enacted state laws that cover the growing occurrence of “e-personation.” As Ramasastry explains, “e-personation” occurs when thieves, scam artists, people seeking revenge, or bullies use the Internet to pretend to be someone else—either by creating a fake Facebook or web profile, or by communicating via email with third parties under a false name. She notes that the object of e-personation is often to defraud, perhaps in order to gain the target’s confidential information. Ramasastry considers whether separate e-personation laws are really necessary, and contrasts California’s and New Jersey’s respective approaches to e-personation. She argues that, in most circumstances, it is not necessary for states to pass a special law to reach e-personation, since the laws already on the books will suffice. Noting that currently, only California, New York, and Texas have separate e-personation statutes, she urges other states not to follow suit and simply enforce the laws they already have. She also discusses the possible First Amendment issues raised by some applications of e-personation laws.

Can Consumers Use Apps to Change the Terms of Online Contracts? A New End User License Agreement Opt-Out Website Offers a Clever, Valid Tool

Justia columnist and U. Washington law professor Anita Ramasastry comments on several possible ways in which users can respond when a website changes its Terms of Service (ToS) without their consent. She focuses in particular on the recent, controversial ToS changes by Sony regarding the Playstation, and by Electronic Arts, which has a new online gaming service, Origin. These ToS changes and others like them have sparked interesting responses, as Ramasastry explains: First, the website GamersOptOut.com makes it easier for users to opt out of these ToS changes (as the companies’ contracts allow) in a less burdensome way. Second, Kevin Owocki’s TOSAmend applet allows users to submit a proposed revised ToS along with their “I Agree” clicks—but, as Ramasastry notes, it’s unclear what the legal effect of Owocki’s clever applet may be. Finally, a third interesting development in this area, Ramasastry points out, is the Electronic Frontier Foundation’s Terms-of-Service Tracker, which details changes in ToS so that website users can take action.

To Honor First Amendment Rights, Cleveland and Other Cities Should Focus on Flash Mob Violence, Not Instant Messaging

Justia columnist and U. Washington law professor Anita Ramasastry comments on the Cleveland, Ohio, City Council’s recent efforts to pass ordinances that penalize the convening of flash mobs that become violent or disruptive. Ramasastry explains the City Council’s original proposed ordinance, and why the city’s mayor vetoed it, and notes that there are significant problems with the City Council’s second attempt at a flash-mob ordinance, as well. She advocates an approach that focuses on action, not speech, when it comes to flash mobs, and reminds us that the “chilling effect” of overly broad ordinances can end up stopping First-Amendment-protected speech before it starts.

Should the Law Treat Defamatory Tweets the Same Way It Treats Printed Defamation?

Justia columnist and attorney Julie Hilden comments on defamation claims based on Twitter users’ tweets. As she explains, two such cases in recent years have involved musician Courtney Love, and another involved Kim Kardashian. Hilden points out that the Supreme Court’s constitutional law regarding defamation was devised with newspapers squarely in mind. She thus analyzes why the different context of Twitter might make a difference, legally. Among other possibilities, Hilden considers possible analogies between tweets and slander, and between tweets and Op Eds.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more