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A teen was arrested for Tweeting an airline terrorist threat. A 14 year old Dutch girl named Sarah with twitter name @QueenDemetriax tweeted to American Airlines the following: “@AmericanAir hello my name’s lbrahim and I’m from Afghanistan. I’m part of Al Qaida and on June 1st I’m gonna do something really big bye.”

In response American Airlines wrote to Sarah from their official Twitter account saying “we take these threats very seriously. Your IP address and details will be forwarded to security and the FBI.” Moments after their response, Sarah replied saying “I’m just a girl” and that her initial tweet was simply a joke that her friend wrote! She had also posted a tweet apologizing to American Airlines and stating that she is scared now.

Sarah turned herself in to the Dutch police station, where the police department stated that they are taking her tweet seriously since it is an alarming threat. The girl was charged with “posting a false or alarming announcement” under Dutch law. It was unconfirmed whether the FBI was involved or not but she gained thousands of followers on Twitter as a result of this incident. Could this be a new trend in order to gain popularity or recognition? Should Sarah be punished and if so how?

Update:

Others are now tweeting similar tweets @AmericanAir and other airlines. Kale tweeted @SouthwestAir “I bake really good pies and my friends call me ‘the bomb’ am I still allowed to fly?” Donnie Cyrus tweeted @SouthwestAir “@WesleyWalrus is gonna bomb your next few flights.” ArmyJacket tweeted @AmericanAir “I have a bomb under the next plane to take off” There are many other tweets with similar language all aimed at airlines.

There are no reports yet of any of these follow up twitter threats being reported to the appropriate authorities. Are these tweeters going too far? These tweets can potentially be translated into legitimate threats or have they now crossed into the realm of freedom of speech?

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Both law students and practicing attorneys will tell you the best way to get employment or clients is either networking or referrals. This week, they may have to add a third option: an app.

Jammed Up is currently a website that will be launching soon for IPhone, Android and Blackberry.  Its slogan is “When trouble finds you, you find us!” The site positions itself as a way to easily find a lawyer if you are arrested, merely scroll through the app or website and select one. There are currently 200,000 lawyer listings nationwide, and the site also includes listings for bail bondsmen and private investigators.

 

The website and future app was co-founded by a bail bondsman and a cement flooring contractor from the Bronx. Michael Falzono, one of the founders, stated they are trying to “be an urban legal website for the everyday person.”

 

Lawyers are bound by ethical rules of professional responsibility. One of the major rules concerns solicitation. The American Bar Associations’ Model Rules of Professional Conduct Rule 7.3 states, in relevant part:

 

“(a)  A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1)  is a lawyer; or

(2)  has a family, close personal, or prior professional relationship with the lawyer.”

 

As stated above, referrals from previous clients or friends and family have been the norm for lawyers. Jammed Up, however, seeks to change that. It seems the app and its legal listings come into direct conflict with Rule 7.3, which serves as a model rule to most of the 50 states ethical rules. I would argue being listed on the app could equate to electronic contact for solicitation e.g. Facebook messaging . Why else would you be listed on Jammed Up? However, there is an argument that since it would be prospective clients that would be reaching out to the attorneys, there is no solicitation.

Social media and mobile apps are a continuing trend that the ethical rules have not caught up with. While old laws may be adequate to prosecute new  crimes, the old ethical rules do not address emerging technology in a way that they should.

Source: New York Daily News

Given the digital goldmine of potential evidence available from social media websites, it is not surprising that they are increasingly targeted by search warrants and government subpoenas in criminal matters.

I recently had a conversation with an Assistant District Attorney that stated when they subpoena digital records from social media websites like Facebook, and Twitter, those social media companies disclose to the user that a subpoena has been ordered to release specific information from the website. As the ADA stated, “this makes it extremely difficult to investigate a person’s social media activity during an on-going investigation.” Further, when a subpoena is issued, the ADA already has creditable evidence to move forward with a subpoena to proceed with the investigation. The ADA is not issuing subpoena’s to invade the privacy of an individual’s innocent conduct.

This new policy from social media companies comes in the wake of the NSA surveillance scandal. Just last month, Eric Snowden appeared via videoconference at the South by Southwest technology conference, urging companies to increase their security and protect their users from government intrusion. Snowden wants the technology industry to get serious about protecting the privacy of its users and customers. Since the NSA scandal, social media companies have implemented new privacy policies that have made it difficult for investigators to subpoena records. This has changed the way social media companies cooperate with government officials.

Federal law provides that, in some circumstances, the government may compel social media companies to produce social media evidence without a warrant. The Stored Communications Act (“SCA”) governs the ability of governmental entities to compel service providers, such as Twitter and Facebook, to produce content (e.g., posts and Tweets) and non-content customer records (e.g., name and address) in certain circumstances. The SCA, which was passed in 1986, has not been amended to reflect society’s heavy use of new technologies and electronic services, such as social media, which have evolved since the SCA’s original enactment. As a result, courts have been left to determine how and whether the SCA applies to the varying features of different social media services.

Facebook has posted in a Help page article titled “May I obtain contents of a user’s account from Facebook using a civil subpoena? The article cites the Stored Communications Act as the reason that “Federal law prohibits Facebook from disclosing user content…in response to a civil subpoena,” stating unequivocally:

“Federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.”

In response to Facebook’s interpretation of SCA, a federal district court judge has held that certain elements (e.g., private messages) of a user’s Facebook or MySpace profile were protected from being subpoenaed under the Stored Communications Act by analogizing them to a type of electronic message (Bulletin Board System–BBS) that was mentioned in the Stored Communications Act. Crispin v. Audigier, 717 F.Supp.2d 965 (2010, C.D. CA).  The court quashed the defendant’s subpoenas to Facebook and MySpace requesting private messages from the plaintiff’s account.

As to the subpoenas seeking Facebook wall postings and MySpace comments, the Crispin court remanded the matter so a fuller evidentiary record regarding plaintiff’s privacy settings so it could be determined before deciding whether to quash the subpoena for that content. This implies that Facebook does not get to decide where the “privacy” bar should be set in determining whether social networking postings and comments are subject to a subpoena as Facebook’s Help pages would lead us to believe—only the court gets to decide that.

Perhaps this is why companies like Facebook have implemented a disclosure rule that notifies the user when a warrant or subpoena has been issued and requests the users site based content.

Are social media companies doing the right thing by notifying users when records are subpoenaed? Thoughts?

Social Rift

Another day, another questionable Facebook acquisition, and as engadget.com put it, another instance of the “Facebook” effect.  This particular acquisition is the $2 billion purchase of virtual reality headset manufacturer “Oculus Rift.”  Oculus Rift is a particularly unique purchase by Facebook because of its crowdfunding roots.  Oculus Rift got its start through the crowdfunding website “Kickstarter.”  Kickstarter allows individuals to contribute money to upstarts and projects often essentially pre-purchasing the product they are supporting.  Oculus Rift was able to successfully get funded and shipped its VR headsets to qualifying supporters.  Oculus was deemed to be a device that will change the gaming industry and supporters, many of them developers, wanted to get in on the ground floor.  Since its funding the Oculus Rift has improved and has been used for numerous projects, demos, and games by developers, artists, and gamers alike.

The future of the Oculus Rift will now however will be determined by Facebook its new owner to the dismay of many of Oculus’ former supporters.  Which poses an interesting legal question that Kickstarter and startups like Oculus have to consider.  What happens when your hundreds of investors on a crowdfunding site like Kickstarter think they are funding something like a unique grassroots revolution in gaming and it turns out to be bought by a social media juggernaut who may have intentions to take the company in a completely different direction?  Kickstarter has maintained that supporters on their website are not entitled to shares of the company they are supporting, viewing supporters as donators more than investors.  Many of the 9,522 initial Kickstarter backers of Oculus are now demanding their money back and expressing their displeasure online through social media such as on twitter and on Oculus’ Facebook page (irony noted).  Oculus’ Kickstarter page is riddled with comments condemning the acquisition and expressing their feelings of betrayal believing Oculus received a windfall on the shoulders of their supporters who made them who they are today.

Facebook may be able to now provide Oculus funding much greater than they have ever seen before, but their future in gaming is at risk by a number of factors.  The “Facebook effect” for instance, caused by the feeling of distrust of the social media giant by many, is already having an adverse effect with not just their Kickstarter supporters, but also by huge players in the gaming industry the platform needs to rely on.  The creator of “Minecraft,” an immensely popular game on a large number of platforms including game consoles, mobile phones, and PC’s tweeted, “We were in talks about maybe bringing a version of Minecraft to Oculus. I just cancelled that deal. Facebook creeps me out.”  Oculus also will soon no longer be the only game in town as far as virtual reality is concerned, with Sony announcing recently their own headset, Project Morpheus, for their PlayStation 4 game console.  Kotaku.com offered a quote by Sam Biddle from the blog Valleywag to offer a strong perspective to sum up the concerns of many in the crowdfunding community, “For me, it’s now simple: post-Oculus, if you back a large Kickstarter project, you’re a sucker.”

Read more at: Engadget & Kotaku

Minnewaska School District has agreed to pay Riley Stratton $70,000 to settle the 2012 case involving the former Minnewaska Area Middle School sixth-grader. Stratton is now 15 years old. According to the lawsuit Stratton was given detention after she posted comments about a teacher’s aide on her Facebook page. The ACLU claimed that the reason for originally viewing her page was due to claims that she was using school computers to talk to a boy about sex. However, Stratton used her own personal computer at home to make the post -not a school computer.
The nature of the comments which lead to detention about a teacher’s aide were supposedly disapproving. A disputed fact in the case was whether there was permission for the school to go through her cellphone and request passwords for her Facebook account. According to Minnewaska Superintendent Greg Schmidt “It was believed the parent had given permission to look at her cellphone,” but there was no signed waiver from the parent, and there was no policy requiring one.
The fact that the posting was made from her home was a deciding factor in settling the case, according to Schmidt. The reason for the lawsuit was because Stratton became too distraught and embarrassed to attend class or go to school. Since this settlement, the school has changed its policy. The school now requires parents to submit a signed permission waiver in order to look through a students cellphone. This case may be an example of schools overreaching their authority in punishing kids for activities outside of school, and especially for things that happen on social media.

California has recently become the first state to enact a law requiring social media companies to give young users (under-18) the chance to delete regretful posts. Federal law lacks such a provision due mainly to the opposing argument that this would be too burdensome on social media companies. Many young social media users do not think before posting irresponsible, reputation-damaging words and pictures to the Internet. The “erase bill” was signed Monday by Governor Jerry Brown and comes into effect in January 2015.

The erase bill is lauded by many such as the founder and CEO of Common Sense Media, who stated, “[t]his puts privacy in the hands of kids, teenagers and the parents, not under the control of an anonymous tech company.” Senate leader Darrell Steinberg noted, “This is a groundbreaking protection for our kids who often act impetuously…before they think through the consequences. They deserve the right to remove this material that could haunt them for years to come.” The law also mandates that social media companies inform minors about their right to erase posts.

One blatant flaw in the legislation is that the law does not force the companies to remove the content completely from the servers. The posts thus survive in the vast cyber-sphere. However, allowing minors to retract ignorant statements and posts from the Internet seems to be a good start in the direction of future federal protection.

The article discussing this new legislation notes that pictures and posts discoverable online could ruin a young person’s ability to land a prestigious summer internship or even admittance into college. After all, employers and recruiters certainly Google young applicants, probably even before reading their applications.

The aim of this legislation is to get other states on board, and eventually to persuade Washington to construct binding law. As a graduate student without any social media, I never had to worry about the potential issues arising from regrettable social media posts. However, as we all make mistakes, especially in our teenage years, it seems appropriate to me that lawmakers would want to give minors the ability to right their wrongs in the days following such posts. I often regret words that come out of my mouth, let alone statements and/or photos that are memorialized on the Internet.

Do you think a young person’s future should be jeopardized for posting substance on the Internet that reflects a moment of their stupidity? We all undoubtedly must be held accountable for what we say, but shouldn’t minors get some leeway? Or, should schools and companies seeking to hire these minors be privy to the potential for such misconduct? I for one support this type of legislation. What do you think?

 

“Erase Law” News Article

Facebook After Death

Facebook has recently changed its privacy policy for deceased users’ accounts.   Prior to this change, upon a friend or family member’s request, and upon confirmation that the user had actually passed away, Facebook would restrict the deceased user’s account so only “friends” could view the “memorial” page.  In order to respect the choices a Facebook user makes while still alive, Facebook will now continue to apply, after the user’s death, the privacy settings the user chose while alive.

When I first read about this, I have to admit I thought it was a little creepy.  I’m not sure that I would want my Facebook page to live on after I die, or if I would want random people to be able to look at a deceased family member or friend’s Facebook page.  However, after surfing the Internet for more information about this, I came upon a Huffington Post blog that opened my eyes to the benefit of this new Facebook policy.

The author of the blog, Jordi Lippe, discussed how, after her father passed away tragically, she found herself visiting his Facebook page, posting on his wall, and tagging him in pictures more often than visiting his gravesite. Ms. Lippe didn’t find this to be creepy, as I had sensed it would be; rather, she looked at it as an opportunity to feel more connected to her father, to honor him, and to connect with all of the other people who missed and loved her father.

Various state legislatures are trying to figure out how to deal with digital assets.  For example, Virginia enacted a law enabling parents of deceased minors to obtain control of their child’s various online accounts.  After the parent assumes his or her child’s terms of service agreements, presumably, that parent can delete those accounts.

What are your thoughts? Is Facebook right in honoring a person’s privacy choices after he or she passes away?  Should minors using Facebook receive the same treatment after death, or are parents justified in wanting to take control of their child’s digital assets, including deleting or deactivating those accounts?  Would you want your Facebook page to be memorialized?

When do they learn

In the past few weeks, both judges and lawyers have been snagged for their inappropriate Facebook posts.

How does a relatively unprofitable company of about 50 employees whose product is a blatant copy of another’s get acquired for 19 billion dollars in five years?  The answer might not be entirely clear, but Facebook shareholders hope that CEO Mark Zuckerberg has a good idea after Facebook’s acquisition of mobile messaging app “WhatsApp” for $19 Billion.  WhatsApp users also would like to know what this all means for the service they have deeply integrated into their lives.

WhatsApp had its start by offering a BlackBerry Messenger like experience for mobile devices other than BlackBerrys.  What that means is that this kind of messaging service offers a much richer experience and allows for enhanced speed and security by utilizing internet data services as opposed to a traditional SMS text message.  Today, WhatsApp has a user base of about 450 million monthly active users, with billions of messages being sent every day, and is growing at 1 million users a day.  The company charges its users a dollar a year to use the service, making a profit nowhere near the $19 Billion purchase price by Facebook.  Looking at Facebook’s current ad based revenue it enjoys through its other services it is not farfetched to suspect a change in the monetization strategy of WhatsApp.  Despite these concerns WhatsApp CEO assures the Wall Street Journal that he believes WhatsApp “will stay completely independent and autonomous.”

These kinds of changes may concern the millions who use and trust WhatsApp especially with all of this happening on the heels of a report by Canadian and Dutch agencies having concerns over the privacy of users of WhatsApp due to violations of international privacy law.  The report found that although WhatsApp had made some changes, the report still concluded that “The investigation revealed that WhatsApp was violating certain internationally accepted privacy principles, mainly in relation to the retention, safeguard, and disclosure of personal data.”  Facebook has been no stranger to privacy concerns and controversy and users of WhatsApp will have to take all of this information into account when choosing what mobile messaging app they will like to use.

For now it is uncertain what changes, if any, will come to WhatsApp after this acquisition by Facebook.  With more secure services like BlackBerry Messenger recently going cross-platform consumers will have to consider which companies they want to possibly have access to their conversations and personal information.

In the comments I would love to hear how you message friends (sms, imessage, bbm, whatsapp, kik, facebook messenger, etc) and why you use that service.  Should we be concerned about the violation of privacy laws by some of these companies?  What steps should be taken to protect consumers who utilize these services?

In a recent New York Times article entitled Blogger’s Incarceration Raises First Amendment Questions, Campbell Robertson details the story of an activist who is the only journalist in the Western Hemisphere in a jail cell because of accusations he made on his blog.  The blogger, Roger Shuler, is the author of the Legal Schnauzer.  Schuler’s blog is known for its ongoing allegations of public corruption and conspiracy theories. Schuler’s arrest and subsequent detention on contempt charges stems from a defamation lawsuit filed by the son of the former governor of Alabama.  Last July, the court issued a temporary restraining order which enjoined Schuler from making any further blog posts accusing the former governor’s son of impregnating a lobbyist and secretly paying for an abortion.  The court also directed Schuler to remove older salacious blog posts about the married son of the former governor. At a subsequent hearing where Schuler appeared pro se, he unsuccessfully argued that the court lacked jurisdiction, calling the court a joke.  The court subsequently ruled that the hearing “served as a trial on the merits” and ordered that Schuler be jailed until he removed the scandalous posts.  Now Schuler, sits in a jail cell because he is unwilling to remove the posts or have an attorney contest his incarceration.

What I find most interesting about this case is whether First Amendment rights regarding blog posts may be impacted because of Schuler’s refusal to engage in the legal process?  According to several civil rights attorneys, an amicus brief from the ACLU and even some of Schuler’s critics, the court’s ruling is alarming.  One of Schuler’s critics, who in the past has threatened to sue Schuler for defamation, criticized the courts holding as having a potential chilling effect on blogging.  In this case the court banned Schuler’s blog posts holding that they were libel.  However, libel must be proved at trial, and here the hearing where Schuler opted out of the system is not enough according to Constitutional Law attorney Ken White.  Now, bloggers First Amendment rights could be affected because of Schuler’s refusal to participate in the judicial system.  In his article, Robertson details how Schuler’s past accusations have led to a flurry of previous litigation where Schuler mostly lost.  Nevertheless, Schuler’s salacious allegations deserve the same protection under the First Amendment as those of any other person, blogger or journalist.  However, any effects on bloggers First Amendment rights should not be determined in a case where a blogger refuses to take part in the judicial system but instead argues that the court is a “joke” and lacks jurisdiction.  Instead bloggers First Amendment rights must be forged where the case is argued on its merits.  In this case the effect on blogging may not be chilling but instead may only be room temperature, but we may not find out until Schuler opts back in to the judicial system and argues the case on its merits.

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