Posts Tagged ‘facebook’

Blog Law Blog Has Never Cooperated with NSA’s Special Source Operations

Thursday, June 6th, 2013


Well, it’s been a busy day for cybernews.

The Washington Post has broken a huge story that the U.S. government, specifically the NSA and the FBI, are accessing e-mails, photos, videos, and other personal data via its “Special Source Operations” – NSA talk for buddy-bud tech companies. The cooperators in this outed “PRISM” program are, according to the Post story, “nine leading U.S. Internet companies”: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple.

(Hey, good for AOL getting lumped into the category of “leading U.S. Internet companies.” No doubt they were super-psyched to see that.)

Well, for my part, I can state unequivocally that Blog Law Blog has never cooperated with the NSA or FBI in sharing any data. (But I do use Google Analytics, as do bazillions of others – so be warned.)

In the same news cycle comes the revelation that Chinese government hacking into private American computer systems is far wider and deeper than previously known. They even hacked the 2008 Obama and McCain presidential campaigns.

Unfortunately, I can make no guarantees that Blog Law Blog has not been hacked by the Chinese government. The only real protection I have against being hacked by China is staying below their radar. Which I’m guessing I probably have. (Although I’ve certainly discussed how China is a leading jailer of bloggers, among other things.)

Hey, by the way, did you notice who is missing from that Special Source Operations list? Yup, no Twitter. Good for Twitter. They’ve certainly shown their user-privacy backbone before. And no Amazon or eBay either.

U.S. v. Michael Upholds Indictment for Facebook Threat to Police

Wednesday, October 17th, 2012

Venkat Balasubramani at Technology & Marketing Law Blog has a good analysis of U.S. v. Michael, (S.D. Ind., Oct. 9, 2012), a case which rejected a Facebooker’s attempt to dismiss an indictment for threatening posts directed at the DEA. (That’s “Drug Enforcement Agency” for our overseas readers). Read Balasubramani’s post for background. Here I want to add my opinion.

I agree with Balasubramani that there has been “a disturbing number of cases that involve criminal liability for these types of statements posted online.”

But I’m less troubled by the indictment in this particular case.

Here’s what Michael posted to Facebook, broken down:

These guys will get whats coming to them … My master assures me that the DEA will be exterminated and humiliated before the end is over …

No true threat there. It sounds like Michael is “threatening” the DEA with the a return of Christ. That’s not a real threat, and it should be protected speech. Next:

WE R COMING FOR YOUR PIG ASS. The only thing the DEA knows how to do is lie and deceive … Its time we answered there crimes with bloodshed and torture.

We are getting closer to a true threat here. But nonetheless, I think that this is sufficiently general that it should be protected speech. For most crazy anti-law-enforcement speech, including the above statements, I think the correct response – and the one the law ought to sanction – is to get a warrant and monitor the person. But then there’s this:

I’ll kill whoever I deem to be in the way of harmony to the human reace … Policeman all deserve to be tortured to death and videos made n sent to their families … BE WARNED IF U PULL LE OVER!! IM LIKE JASON VOORHEES WITH A BLOODLUST FOR PIG BLOOD.

This is where I think we have something that the government ought to be able to prosecute. Michael has indicated a desire to kill a law enforcement officer at a traffic stop. That is something that could happen instantly, without further warning. And while the feds might be monitoring Michael and thus would not be caught flatfooted, a local police officer might not be. Using threat laws prophylactically to take a person off the street under such circumstances seems to me a reasonable means to avoid a tragedy. Moreover, the speech value of this particular language is low.

Threats directed at the government ought to be accorded more tolerance than threats directed at a private person. For a private person, the threat itself can constitute a significant psychological harm. When it comes to threatening speech directed at the government, I am more comfortable if threat laws are used in a preventative capacity.

Admittedly, threat laws are not closely calibrated to a preventative role. Once the threat is dissipated, the conviction will remain. Threat laws punish speech. And that being the case, I continue to find them concerning. But their application in this circumstance, at least, seems appropriate to me.

By the way, I had to look up Jason Voorhees. He’s the hockey-mask wearing Jason from the Friday the 13th movies. I guess I’m out of it – at least when it comes to 1980s-spawned horror franchises – but I, personally, was thrown off by the use of his last name.

Facebook Posts Get Former Marine Held for Month in Psych Ward

Thursday, August 23rd, 2012

A former Marine, Brandon Raub, was recently detained because of posts made on his Facebook account referencing a coming “civil war,” saying he was “done waiting,” and quoting a rap lyric, “Sharpen up my axe, I’m here to sever heads.”

Raub was taken into custody in this week in Virginia after being questioned by FBI and Secret Service agents. The latest is that after a hearing, Raub had been ordered held for an additional 30 days in a psychiatric ward.

For background, you can read the news story on HuffPo and find the essential facts and Mike Masnick’s commentary on TechDirt.

I actually have some experience with the legal procedures involved in detaining persons for psychiatric reasons. One summer in law school, I had a short externship with the Mental Hygiene Legal Service in the basement of the Manhattan Psychiatric Center on Wards Island in New York. (And let me say that it was an incredible experience, and I found that the attorneys down there providing legal services to patients were some of the quickest, smartest, and most impressive attorneys I have every worked with.)

So let me offer something from a mental-health-law perspective.

The Raub case has people concerned that online posts espousing conspiracy theories and radical leanings can cause a person to be locked up. And, in a sense, that’s what happened here. But once a person gets into the mental health system, it generally becomes a matter for physicians. Physicians aren’t legally able to deprive someone of their freedom, at least not beyond emergency circumstances on a short-term basis. Persons suspected of being mentally incompetent and dangerous are entitled to due process.

The due process that patients get is usually get that in the form of a hearing in which a judge listens to testimony of one or more physicians opining as to the psychiatric state of the patient. You might be surprised how smoothly this goes for the state. This is not like a trial. There is no jury, and the evidentiary standards are very relaxed. The state can use hearsay evidence to commit someone involuntarily, since they get it in as the basis for the psychiatrist’s expert opinion.

The whole field of mental health commitment is a fascinating one legally, and it raise a host of due process concerns that should make just about everyone uncomfortable. That’s not to say that the system is bad – like so much under our system of law, it reflects a balance between the need to uphold rights and freedoms and the need to prevent violence. It’s just to say that, like much else in law, it ought to make one uncomfortable.

So, with that background, I’m guessing that the Raub case is more about physicians deciding Raub needs to be held rather than it is about the government taking action against anti-government speech. Now, I should note that the story of physicians have tremendous power, mediated through court process, to deprive people of their freedom is not a new story – but it is a compelling one.

Yet because it brings mental-health law to bear on blogging, the Raub case remains one worth watching. There is no doubt that there is power here that could be abused. Maybe Raub is a radical whose speech is being shut down in violation of principles of free expression. Maybe he needs medical treatment. Of course, it’s very possible both are true at the same time.

Shareholder Lawsuits Quickly Follow Facebook’s IPO

Thursday, May 24th, 2012

Nasdaq chart of Facebook stock
Facebook’s falling stock. (Image: Nasdaq)

Facebook and its investment bankers are being sued over an IPO that didn’t “pop” the way so many investors were hoping. After debuting at an issue price of $38, Facebook’s stock has fallen to a low of $30.94. As I write this, it’s trading at a little over $32.

On Friday, I did a post about the law of IPOs. I talked about how much paperwork you have to file with the SEC in order to do a public offering, including a long, boring document called an S-1. So tedious, almost no one will read it. Almost. As I said:

You know who reads S-1s? Other lawyers. In particular, litigators. Lawyers who are looking for some misstatement or some unmentioned fact that will serve as a basis for a lawsuit based on federal securities law. And then it’s off to the courthouse!

Ahem. That didn’t take long. According an Associated Press story published yesterday:

One suit, filed in U.S. District Court in New York, claims Facebook’s IPO documents contained untrue statements and omitted important facts, such as a “severe reduction in revenue growth” that Facebook was experiencing at the time of the offering.

AnnaMaria Andriotis at SmartMoney adds an interesting footnote to this whole story about a trend of declining payouts in securities class-actions. That means the Facebook lawsuits may be just as disappointing to investors as the IPO.

Thumbs Up for the Law of IPOs

Friday, May 18th, 2012

Facebook thumbs-up symbol with "cha-ching" and large asterisk

I talk about the lawyering behind Facebook’s IPO on the Stanford CIS blog.

Juror Tries to Friend Litigant

Tuesday, February 7th, 2012

WTSP TV logoBeau Zimmer of WTSP television in Florida reports that Jacob Jock, a male juror in a vehicular negligence civil suit attempted to friend the “young, attractive” female defendant. Good for her she didn’t accept the friending. Instead, she altered her attorney, who told the judge, who kicked the guy off the jury.

Then the ex-juror, who has a large helping of some kind of reverse common sense, proceeded to get on Facebook and brag about how he got out of jury service.

That finally did it, and the judge held him in contempt. Now he’s facing possible jail time.

BTW, USA Today mis-credited Beau Zimmer as “Ben Zimmer”.

FTC Wins Settlement from FB

Tuesday, December 6th, 2011

wobbly Facebook logoFacebook has entered into a big settlement with the Federal Trade Commission – America’s top consumer cops – regarding privacy of user data. As part of the deal, FB will warn users about privacy changes and must submit to biennial privacy audits for the next two decades.

I love the FTC. They do good stuff. Of course, it’s good to note also that FB has done a lot of backpedaling on privacy issues because of user backlash – a kind of semi-organized consumer pressure that is possible these days because of social networking technologies like, um, Facebook!

Here’s what Zuckerberg said in his blog post about the settlement (which he rosily calls a “settlement”):

… I’m the first to admit that we’ve made a bunch of mistakes [including] a small number of high profile mistakes, like Beacon four years ago and poor execution as we transitioned our privacy model two years ago …

[W]e’re making a clear and formal long-term commitment to do the things we’ve always tried to do and planned to keep doing — giving you tools to control who can see your information and then making sure only those people you intend can see it. In the last 18 months alone, we’ve announced more than 20 new tools and resources designed to give you more control over your Facebook experience.

I actually think Facebook is getting quite a bit better – not just about privacy, but about being a better service altogether. I predicted the demise of Facebook earlier this year. If Facebook keeps changing fast enough, it might hold on. But I just don’t think it will. Fundamentally, the company seems out of touch with what people want. Like the Facebook ticker feature that was new this fall – that’s just creepy.

Here are the words from the parties:

Here are some write-ups:

UK Anti-Terrorism Law Invoked Against Dad Who FB’d Photo of Daughter Eating Ice Cream in Mall

Tuesday, October 11th, 2011

Four-year-old girl eating ice cream on a seat fashioned like a pink Vespa scooter

The face of terrorism? (Photo: Chris White)

Chris White used his cell phone to take the adorable photo at right of his 4-year-old daughter eating ice cream in the Braehead Shopping Centre in Glasgow, Scotland. And with that, Mr. White took his fateful step toward becoming a terrorist – or so it would seem in the view of authorities who then swooped down on him.

To be entirely frank, I would understand authorities accusing me of terrorism for bringing my 3- and 6-year-old boys into a shopping mall. They go berserk in public spaces. Generally, you can’t capture a non-blurry photo of my boys with a cell phone – they move too fast. Often they are moving fast in a way that constitutes an immediate threat to property and person. But this photo of Chris White’s daughter seems to me to have nothing-to-do-with-terrorism written all over it.

I will let Mr. White explain what happened in his own words:

Walking down the shopping mall a man approached me from behind as I was carrying my daughter in my arms. He came from behind me, cutting in front of me and told me to stop. That was quite a shock as I am wary of people with crew cuts and white shirts suddenly appearing in front of me [Me too. –EEJ], but then realised he was a security guard. He then said I had been spotted taking photos in the shopping centre which was ‘illegal’ and not allowed and then asked me to delete any photos I had taken. I explained I had taken 2 photos of my daughter eating ice cream and that she was the only person in the photo so didn’t see any problem. i also said that I wasn’t that willing to delete the photo’s and there seemed little point as I had actually uploaded them to facebook. He then said i would have to stay right where I was while he called the police …

The older police officer … said that there had been a complaint about me taking photos and that there were clear signs in Braehead shopping centre saying that no photographs were allowed. I tried to explain that I hadn’t seen any clearly displayed signs and that I had taken 2 photos of my daughter. … He then said that under the Prevention of Terrorism Act he was quite within in his rights to confiscate my mobile phone without any explanation for taking photos within a public shopping centre[.] … He then said on this occasion he would allow me to keep the photos, but he wanted to take my full details. Name, place of birth, age, employment status, address. … The police officer also said that the security guard was within his rights to now ask me to leave Braehead Shopping Centre and bar me from the premises which I was happy to oblige.

The UK Prevention of Terrorism Act apparently allows the UK’s Home Secretary or a court to issue a “control order” that can restrict a terrorist suspect’s liberty in various ways, including prohibiting the person from possessing a mobile phone. I don’t see in the act where it allows a police officer to exercise that power on the spot when confronting a person the officer believes to be a suspect. But maybe someone who understands UK law better can chime in on that.

Well, after Mr. White started a Facebook page called Boycott Braehead, the story was picked up by the BBC, and within hours the management of Braehead was apologizing and announcing a change in policy so that people will be able to take photos of friends and family. They are also saying they will implement the change at all 11 centers owned by the same company.

Meanwhile, the Boycott Braehead page has 22,381 likes. Check that: 22,475. (It’s going up as I write this.) Now it’s 22,498.

More:

Syria Torturing Facebookers for IDs and Passwords

Wednesday, May 11th, 2011

Syria flag and mapAdrian Blomfield of the Telegraph reports that Syria has been torturing protesters to get them to reveal their user IDs and passwords to Facebook and Twitter accounts used for organizing anti-government protests.

And it’s been working.

One activist was quoted as saying that, because of passwords and IDs acquired from torture, “lines of communication have almost been completely severed.”

(Ha’p Milblogging.com)

Kozinski Says Winklevoss Twins Get One Shot Among them at Facebook Suit

Friday, April 15th, 2011

Kozinski has bounced the Winklevii attempt to blow up their settlement agreement and start all over again in their suit against Facebook.

The order is here.

Poor Mark Zuckerberg has been hounded by this. Sketchy business arrangments at the beginning of a venture can definitely lead to big litigation down the line. Indeed, this is a situation that could happen to any blogger with a blockbuster idea.

So, how would I advise you to immunize yourself from a Winklevoss-type suit if you are working on the next Facebook?

I would say just get that next-Facebook thing right. (And then call me about it and ask me to help you with it to create a foggy kind of record that will allow me to sue you for billions of dollars if you turn out to be successful.)

Look, lawsuits always follow the money. You can’t have a runaway business success without attracting some litigation. By all means, hire a good lawyer when you’re making business arrangements at the outset of an entrepreneurial venture. But the better practical advice might be to stay away from prepsters belonging to exclusive dinner clubs.

School Assembly Shocker: Student’s Social Media Skimmed for Slideshow

Thursday, April 14th, 2011

Lynde Point Lighthouse near Old Saybrook, Conn. (Photo: Robert J. Beyus, NPS)

A high school in Connecticut illustrated a slideshow on internet privacy with photos of the school’s students, taken from Twitter, Tumblr, and Facebook.

Kashmir Hill called the ploy a “clever lesson,” and she gave “[k]udos to the Connecticut high school employee who came up with this dramatic lesson on Internet safety.”

Some students at Old Saybrook High School, however, reacted angrily, saying it invaded their privacy.

Do the students have a point? Legally speaking, yeah, maybe.

I think this would probably not make for an ultimately successful lawsuit for copyright or right-of-publicity infringement. But there’s probably enough on both of those causes of action to file a complaint that isn’t frivolous. And hey, publicity rights have been getting crazy lately, so you never know.

So far no word on whether Righthaven is trying to sign up students for copyright lawsuits.

According to the New Haven Register, principal Oliver Barton said the pictures selected were publicly accessible and thought unlikely to embarrass anyone.

But that didn’t stop the backlash.

For me, I just can’t believe school administrators thought this was a good idea. What a great way to peeve off parents. While I question their sense of judgment, it does look like their lesson is working. Check out this passage from the New Haven Register article:

“They told us we were going to watch something about Internet safety, and they said they personalized the slide show, ” said a freshman named Kayla, who didn’t want to use her last name.

Did you catch that? Kayla didn’t want to use her last name!

Lesson learned.

Zuckerberg is Officially a Californian, Sorry New York

Monday, April 4th, 2011

A federal court in New York, after thinking through the issue thoroughly, has decided that Facebook founder Mark Zuckerberg is domiciled in California. That means that the federal court will hold on to jurisdiction in Ceglia v. Zuckerberg, instead of kicking it to state court. Oddly enough, it doesn’t look like Zuckerberg’s Facebook profile information settled the issue. Evan Brown blogs it.

WSJ on Employers Stepping on Social Media Mines

Friday, January 21st, 2011

Wall Street Journal logoFor a long time there’s been a lot of talk about how employees and job candidates are hurting themselves by posting to blogs, Facebook and Twitter. But, as The Wall Street Journal notes in a story today by Jeanette Borzo (page B6 in print), employers are increasingly causing a mess for themselves by way of social media too.

The American Medical Response case has a hearing next week, the WSJ reports. There, the employer is accused of violating federal labor law for terminating an employee based on postings to Facebook.

The WSJ article also discusses the case of restaurant managers of Hillstone Restaurant Group in New Jersey who broke into a password-protected MySpace page that employees had set up. The employees were using the MySpace page to gab about work. The restaurant group was sued for violating the Stored Communications Act, a federal law, and was ordered to serve up $3,403 in back wages and $13,600 in punitives. The suit was eventually settled pending appeal.

Now, on a bit of a sidenote, I thought it was noteworthy that the Wall Street Journal article disclosed the following:

(Myspace is a unit of News Corp., which also owns The Wall Street Journal.)

Isn’t that a little surprising? I mean, I of course know that Rupert Murdoch bought MySpace for half a billion dollars a few years ago. I just didn’t know that MySpace still existed.

Ha ha. And while we’re on that invective tangent, here’s Ross Pruden on how Facebook vanquished MySpace. Interesting business-managementy stuff.

(By the way, I’ll confess I’m a little loathe to link to a Wall Street Journal article when I know that they may dump it behind their paywall any minute. I’ve avoided the WSJ in the past because of that. But I’m letting it go this time.)

Lamebook v. Facebook

Tuesday, November 23rd, 2010

A blog called Lamebook that posts funny Facebook status updates has been threatened with a trademark infringement lawsuit by Facebook. Seeking to vindicate their rights, and probably trying to keep the lawsuit near home where it will be cheaper and easier to deal with, the folks at tiny Lamebook have sued megalithic Facebook for declaratory judgment in Texas. (TeleCrunch, Washington PostHuffington Post)

I haven’t read the pleadings, but this sounds like a strong case for Lamebook. That is, if they can survive a blizzard of high-paid lawyers and billable-hour-sucking motions.

Lamebook should have the right to pick an name and identity that calls to mind Facebook where, as is the case here, it is undertaking an activity that directly concerns Facebook, and it is producing content critical of Facebook.

In my view, that’s not actionable under trademark law, and, to boot, it’s protected First Amendment activity.

But let’s face it: Justice isn’t perfect and dollars matter. We’ll see if Lamebook can survive Facebook’s trademark bullying.

Go Lamebook!

Jury Instructions on Blogs

Tuesday, October 26th, 2010

For a while now, trial judges have been careful to warn juries against using social media to communicate about their trial. Here is an example of how that is being done. Below are recent jury instructions from the case of Digital Ally, Inc. v. Todd Elder & Co. from a state court in Jackson County, Missouri.

(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE

Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case or any witnesses, parties, layers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, email, blog, tweet, text, or post anything about his trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

If any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.

The complete document is available on Westlaw at 2010 WL 3417831.