MediaTech Law

By MIRSKY & COMPANY, PLLC

Privacy Round Up

Can you Tweet That?

Venkat Balasubramani writes on the Technology & Marketing Law Blog about a suit filed recently in federal court by Uli Behringer against “John Doe” Twitter users claiming (among other things) violations of the Computer Fraud and Abuse Act (CFAA [http://www.law.cornell.edu/uscode/text/18/1030]), 18 U.S. Code § 1030, unfair competition, trademark and copyright infringement, cyberpiracy and libel.

The claims arise from the failed efforts of Mr. Behringer to have Twitter disable the accounts of users using the Twitter handles “@NotUliBehringer” and “@fakeuli”.  This, despite the fact that as Balasubramani writes, “the first thing that jumps out is that both accounts are clearly parody accounts – no reasonable twitter user would think otherwise.”  According to Balasubramani, Twitter responded that the accounts did not violate any of Twitter’s policies and therefore refused to disable the accounts, prompting Behringer to bring his case to federal court.

Balasubramani clearly thinks Behringer’s suit is frivolous, although not just because of the protected status of parody under First Amendment and fair use law.  He describes the copyright, trademark unfair competition and interference with contract claims as “tenuous at best”.

What is the Reach of US Jurisdiction Over Personal Data?

Hunton & Williams, in its Privacy and Information Security Law Blog, writes about a U.S. federal court ordering Microsoft to release user data to U.S. law enforcement in response to an otherwise valid search warrant even where the data was physically stored on servers based outside the United States.

In this case, the data was stored on servers in Ireland.  According to H&W, Microsoft argued that “U.S. courts are not authorized to issue warrants for extraterritorial search and seizure of emails.”  In response, a federal magistrate judge held that a search warrant for online data should be viewed – and treated – differently than a conventional warrant, and particularly should be viewed much more liberally for extraterritorial access purposes.  Allison Grande of Law360.com reports that the judge held that the Stored Communications Act, 18 U.S. Code § 2701 “does not explicitly bar extraterritorial access.” 

California’s Invasion of Privacy Act 

Courtney Bowman writes on Proskauer’s Privacy Law Blog of a case out of federal court in Northern California involving a consumer who sued Verizon for the failure of Verizon’s third party collections agency to provide advance notice to the consumer of the recording of its phone calls.  Verizon unsuccessfully moved to dismiss the case, arguing that the consumer’s privacy rights had not been violated.  In particular, Verizon had argued that Section 632.7 of California’s Invasion of Privacy Act only required prior notice of recording for confidential or private calls.

The court held that this limitation did not apply to cell phones, which were protected for all calls (unlike landlines).  Michael Mallow and Christine M. Reilly of Loeb & Loeb write about the same case [http://www.loeb.com/articles-clientalertsreports-20140417-californiaprerecordingnotificationcellcalls]: “The court concluded that, unlike the statutory requirements that apply to the recording of landline telephone calls, mobile phone conversations cannot be recorded without prior notification, regardless of whether the consumer has a ‘reasonable expectation’ that the call will be private and not recorded or whether confidential information is discussed during the call.”

Bowman of Proskauer discusses the ruling’s possible implications for businesses regularly making telephone sales and solicitations and other telephone communications with customers and potential customers.  Bowman does not, however, discuss what constitutes acceptable “prior notice”.  For example, does the obligatory and oh-so-common announcement of “this call may be recorded for purposes of quality assurance and other purposes” satisfy this requirement?  If so, that seems like an easy threshold to meet.

White House Report Recommends Strengthening Privacy Laws

Lindsay Wise wrote for McClatchy DC that the White House has released a report which warns that “data collection can reveal consumers’ intimate personal details and lead to discrimination.”  Wise writes that the report recommends strengthening privacy laws and says that online and off-line communications should receive the same legal protections.  These recommendations include passing President Obama’s Consumer Privacy Bill of Rights (first proposed in 2012) “as a regulatory framework that would give consumers more control over the data that companies collect about their everyday actives in the digital age”.

Wise writes that President Obama’s counselor, John Podesta, led the group which compiled the report and that Podesta recommended “extending privacy protections to protect non-US citizens, protecting students from inappropriate use of data collected for educational purposes, and recruiting technical experts to help the federal government monitor data analysis practices for discrimination against minority groups and other protected classes.”  Podesta summarizes the report in a blog post here.

Supreme Court Confused by Privacy in the Social Network

Andrea Peterson reports on The Switch blog that the Supreme Court is confused by Facebook’s privacy settings.  Writes Peterson, the Supreme Court “held oral arguments in a pair of cases that will shape what privacy protections Americans have against warrantless searches of electronic devices”. According to Peterson, during a discussion regarding the case Riley v. California, Chief Justice John Roberts addressed Facebook’s privacy settings.  In Riley, college student David Riley was pulled over by police and officers seized his phone.  Police then “used a photo on [Riley’s phone] to convict him for participation in a drive-by shooting”.  Riley’s lawyers argued that “flipping through photos on a smartphone draws on a multitude of data that is ‘intrinsically intertwined’ in the device in such a way that implicates the Fourth Amendment.”

During oral argument on the case, Chief Justice Roberts asked “Including information that is specifically designed to be made public?… what about [flipping through ‘public’ photos on] something like Facebook or a Twitter account?”  Peterson speculates: “Roberts seems to indicate that he believes anything shared on Facebook is potentially fair game, regardless of privacy settings.”

 

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