Topic: Legal

Legal side of Reputation Management

Illinois On The Brink Of Getting A Digital Data Privacy Law 0

Illinois online privacy lawFederal lawmakers clobbered the FCC’s digital data disclosure law, but Illinois representatives are nursing a version of it back to health. A digital data privacy measure, if ratified, the Right to Know Act would require most websites and social media platforms to disclose what user data they collect and with whom it’s shared.

Illinois’ Right to Know Act: A Digital Data Privacy Law

Sponsored by State Senator Michael Hastings, the Right to Know Act requires Internet service providers and websites to provide either a working email address or toll-free number that people can use to request information about collected personal data and third parties that received said data.

So far, a version of the bill has passed in the House, and the state’s Senate recently voted 32-21 in favor. It now heads back to a House committee, where it’s expected to be approved.

Federal Data Collection Law Is Dead, But States Are Picking Up The Slack

A Federal Communication Commission digital privacy law, which would have required ISPs to disclose the nature and destination of collected consumer data, was scheduled to go into effect in the coming months.  But in March, the U.S. Congress killed the measure.

States, however, seem to be filling the legislative gap.

The National Conference of State Legislatures revealed that statutes similar to the one in Illinois are being drafted in Alaska and Rhode Island. Plus, about twelve other states are in the early stages of considering some form of online privacy legislation.

Not Everyone Is Thrilled With Illinois Right to Know Act

Online businesses aren’t fans of the act. Opponents argue that a dearth of actual consumer value, coupled with costly administrative excess, make this bill a bad one.

Sen. Chris Nybo explained, “Every technology company [I have] spoken to, from Microsoft to Uber, Lyft…is opposed to this bill.” Nybo also lamented, “I think it sends the wrong message.”

Another subset of politicians is also opposed to the law. Not necessarily because of reasons above, but because they think online privacy issues should be handled on a federal level.

“The federal government has a system of rules and regulations to handle internet traffic,” explained Jason Barickman, a state Senator. “I think we, as one of 50 states, (need) to let them handle those issues and not create additional burdens for our many people and businesses here in Illinois,” he concluded.

Undeterred by detractors, Sen. Hastings, the bill’s sponsor, enthused “I think this is a step forward for Illinois in terms of data privacy. It gives people the right to know what information (Internet companies are) selling to a third party.”

Questions For An Internet Lawyer?

Kelly / Warner works with online businesses and tech entrepreneurs. To learn more about our practice, head here. If you’re ready to speak with an online business attorney, get in touch.

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Facebook Defeats Lawsuit Over Material Support for Terrorists–Cohen v. Facebook 0

We’ve seen a cluster of lawsuits against social media sites based on their alleged provision of material support to terrorists. The first substantive ruling–in Fields v. Twitter, now on appeal to the Ninth Circuit–was a decisive plaintiff loss, casting a dark shadow on all of the other cases. The second substantive ruling, in the Cohen and Force v. Facebook cases, also is a decisive plaintiff loss. As courts keep explaining to plaintiffs why these lawsuits aren’t meritorious, when will we see this litigation cluster fade away?

The Cohen case involves 20,000 Israeli citizens who “have been and continue to be targeted by” attacks by Palestinian terrorist organizations.” The Force case involves “victims, estates, and family members of victims of terrorist attacks in Israel.” In both suits, the plaintiffs allege that Palestinian terrorists “use Facebook’s social media platform and communications services to incite, enlist, organize, and dispatch would-be killers to ‘slaughter Jews.’” The complaints also allege that Facebook’s algorithms help the terrorist messages reach sympathetic audiences, and that Facebook knows of accounts held by terrorists and failed to take action. The plaintiffs sued for violations of federal anti-terrorism laws, various other U.S. laws, and Israeli law. The Cohen plaintiffs only sought injunctive relief, while the Force plaintiffs sought $1B in compensatory damages (trebled pursuant to the anti-terrorism laws) and more.

Subject Matter Jurisdiction. The Cohen plaintiffs are dismissed for lack of subject matter jurisdiction:

the Cohen Plaintiffs do not seek redress for past actions but instead seek prospective, injunctiye relief based on their allegation that Facebook’s actions increase their risk of harm from future terrorist attacks. This claimed harm relies on multiple conjectural leaps, most significantly its central assumption that the Cohen Plaintiffs will be among the victims of an as-yet unknown terrorist attack by independent actors not before the court. The Cohen Complaint contains no factual allegation that could form a basis to conclude that those individuals in particular are at any “substantial” or “certainly impending” risk of future harm. At most, the Complaint shows a general risk of harm to residents of Israel and impliedly asks the court to extract a risk of harm to the Cohen Plaintiffs based on this risk. Without further allegations, however, the court sees no basis to conclude that the Cohen Plaintiffs “specifically will be the target of any future, let alone imminent, terrorist attack.”

Nor can the Cohen Plaintiffs rescue their claims by arguing that they suffer a present harm resulting from their fear of such attacks, as “allegations of a subjective [fear] are not an adequate substitute for a claim of specific present objective harm or threat of a specific future harm.” While the court does not question the sincerity of the Cohen Plaintiffs’ anxieties, their subjective fears cannot confer standing absent a sufficient showing of the risk of future harm.

In a footnote, the court says that the alleged statutory violations of Israeli law do not confer standing per Spokeo.

Section 230. The court’s Section 230 ruling is plain and clear: “even the most generous reading of their allegations places them squarely within the coverage of Section 230(c)(l)’s grant of immunity.”

The court runs through the familiar three-pronged immunity analysis:

* social media sites generally, and Facebook in particular, are providers of interactive computer services. Cites to Klayman and Doe v. MySpace.
* The plaintiffs’ claims are based on third party content. The court says the Klayman district court ruling “recently rejected an argument that Facebook fell afoul of this standard by using data collected from users to suggest other content and users, stating that ‘the manipulation of information provided by third parties does not automatically convert interactive service providers into information content providers.’”
* Oddly, the plaintiffs chose to make their stand on the publisher/speaker prong, and it goes about as well as expected. The court says the Second Circuit’s LeadClick ruling “emphasizes that Section 230(c)(1) is implicated not only by claims that explicitly point to third party content but also by claims which, though artfully pleaded to avoid direct reference, implicitly require recourse to that content to establish liability or implicate a defendant’s role, broadly defined, in publishing or excluding third party communications” (with cites to Doe v. Backpage and Manchanda v. Google). Thus, “decisions as to whether existing content should be removed from a website fall within the editorial prerogative.” Applying this standard to Facebook, “Facebook’s choices as to who may use its platform are inherently bound up in its decisions as to what may be said on its platform, and so liability imposed based on its failure to remove users would equally ‘derive[] from [Facebook’s] status or conduct as a ‘publisher or speaker.’…it is clear that Section 230(c)(1) prevents the necessarily antecedent editorial decision to allow certain parties to post on a given platform, as that decision cannot be meaningfully separated from ‘choices about what [third party] content can appear on [the platform] and in what form.’” The court continues:

the Force Plaintiffs claim that Facebook contributed to their harm by allowing Hamas to use its platform to post particular offensive content that incited or encouraged those attacks. Facebook’s role in publishing that content is thus an essential causal element of the claims in the Force Complaint, and allowing liability to be imposed on that basis would “inherently require[] the court to treat the defendant as the publisher or speaker of content provided by” Hamas.

The court’s arguments unquestionably reject the key arguments being made on appeal by plaintiffs in the Fields v. Twitter case. If the Ninth Circuit finds this ruling persuasive, the Fields plaintiffs’ appeal is definitely doomed (I think it’s doomed no matter what, but this opinion reinforces that).

The plaintiffs tried to take advantage of Section 230’s exclusion for federal crimes. The court responds:

While, read most favorably, this section could be interpreted to inhibit immunity as to civil liability predicated on federal criminal statutes, such as the ATA provisions at issue here, this reading has been rejected by most courts that have examined it. [cites to Backpage, MA v. Village Voice, Doe v. Bates, and Obado v. Magedson; there are others] The court concludes that this subsection does not limit Section 230(c)(1) immunity in civil actions based on criminal statutes but rather extends only to criminal prosecutions.

The plaintiffs also argued that Section 230 cannot apply extra-territorially to their Israeli law claims. I cannot recall seeing a plaintiff make this argument before, so I think it’s a novel effort to work around Section 230. Surprisingly, the opinion doesn’t address the SPEECH Act, which made it pretty clear that Congress wanted to restrict foreign law end-runs around Section 230. Nevertheless, the court concludes that Section 230 sought to limit defendants’ liability, so it applies where redress is sought, not where the claims arise, and thus is fairly applied by a New York court to Israeli residents.

Finally, the plaintiffs argued that Section 230 does not apply to foreign law. Section 230(e) enumerates some limits of the immunity, and foreign law isn’t referenced. The court says “because there is no listed exception for foreign law claims, those claims remain subject to the limitations on liability provided by Section 230(c)(1).”

Perhaps this looks like a routine Section 230 opinion, but the stakes in these cases make any win noteworthy. The plaintiffs essentially sought to treat Facebook as the financial guarantor of all terrorist-caused harms to all victims, regardless of what role Facebook played in causing those harms. Such an unbounded financial exposure could dwarf Facebook’s market capitalization, meaning that the theories behind these lawsuits pose an existential threat to Facebook, other social media sites, and possibly the entire Internet. Thus, the judge’s well-reasoned and clear rejection of the plaintiff’s claim is a big win for Facebook and the Internet.

Gossipy note: this is the case where, in September 2016, the judge went apoplectic that a junior associate appeared in court for Facebook, and the judge felt like Facebook wasn’t taking this seriously enough, e.g., “You tell your folks back at Kirkland & Ellis that I don’t much like the idea that they think so little of this court that they didn’t send a partner here to talk about this kind of a problem which implicates international terrorism and the murder of innocent people in Israel and other places.” Facebook responded by sending (among others) former magistrate judge and now deputy GC Paul Grewal (who, if I recall correctly, was in the first week of his new job), and a little in-court bromance ensued. As this ruling shows, Facebook sufficiently quelled any of the judge’s reservations about Facebook’s priorities.

Case citation: Cohen v. Facebook, Inc., 16-CV-4453 (NGG) (LB) (E.D.N.Y. May 18, 2017). The Cohen complaint. The Force complaint.

Source: Eric Goldman Legal

Mogul Says Amazon Is Great For Brick and Mortar Retail 0

Amazon great for brick and mortarAmazon and other online retail destinations are killing brick and mortar stores. That’s the common sentiment wafting its way around Wall Street. But mall mogul Rick Caruso thinks the opposite.

“Amazon Is Great For Retail”

At the Milken Global Conference, Rick Caruso bucked consensus, asserting that “Amazon has been great for retail.” Why does Caruso, a principal of the famed “Grove” shopping mall in Los Angeles, believe online Amazon could be brick and mortar’s saving grace?  He points to an emerging trend: Brands starting online, becoming successful, and then branching out into physical stores. Caruso cites Warby Parker — the wildly popular eyeglass company with Internet roots — and Amazon’s bookstores as two examples.

The retail luminary also praised Amazon for forcing “retailers to be smarter and know their customers better.”

Are Indoor Malls Doomed, Though?

Caruso, however, doesn’t think all retail was created equal. “You’re not going to save indoor retail…The malls are going to die unless you reinvent them,” he predicted, but positively concluded that “good brick and mortar is going to flourish.”

Also at the conference was Ross Perot, Jr. who is equally enthusiastic about Amazon. And it’s no wonder, as Perot’s company is developing eight new Amazon fulfillment centers. He marveled at Amazon’s growth and called the company’s rise “stunning to watch.”

Future Product Delivery Plans For Amazon and Uber

Ostensibly excited about Amazon-partnership programs still in the development stage, Perot also touched on Uber Elevate. A joint venture between Uber and Amazon, the project would involve “drone stations” where Amazon packages “take off” on drones, and then dock on top of Uber cars for the last mile of the delivery journey.

About Kelly / Warner: E-Commerce and Online Business Consultants and Contract Negotiators

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And They’re Off! Esports Season Has Officially Begun! 0

esports summer season 2017The Kiev major for Dota 2 climaxed with OG defeating 3-2.  For their efforts, OG took home the first place prize of $1 million and Vitrus got a respectable $500,000, in what was the first of several multi-million dollar events this summer.

Over the next several months, League of Legends and CS:GO will have a plethora of major events, involving tens of millions in prizes, culminating with Dota 2 and International tournaments at the end of August.

Here’s a quick overview of what’s coming up.

League of Legends

The SLO Spring Cup and Mid-Season Invitational are both going on right now. As such, expect to see League of Legends regain the top spot in the sports betting market.

Dota 2

As mentioned above, the Kiev Major just concluded with $3 million total in prizes.   Next week Shanghai hosts the StarLadder i-League Invitational and Manila Masters event will close out May for Dota 2.


The Intel Extreme Masters is taking place in Sydney right now, top prize is $200,000.  June will feature the $1 million+ Esports Championship Series and ESL Pro League.


Finland will be hosting June’s World Championship Series with another $100,000 going to the winner.

Chat With An Esports Agent

Kelly / Warner law represents professional esports athletes. If you’re a professional gamer in search of an esports agent, or just some one-off legal help about a contract or other matter, let’s talk.

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Revisiting the Discoverability of Facebook Account Activity–Gordon v. TGR 0

The facts of this case are fairly typical. The plaintiff was hit by a truck. She sued the truck company and driver. In discovery, the defendants requested that she “download and produce an electronic copy of your Facebook account history” covering both before and after the accident. She says she has already “produced the information from her Facebook accounts that references the accident or her injuries.” Defendants aren’t satisfied.

Social media evidence can be a treasure trove for litigants, but there’s no optimal way to balance all of the competing interests. After some troubling initial rulings, courts have become more circumspect about allowing a litigant to get a litigant’s entire log of Facebook activity. It may be technologically easy to generate the Facebook activity log, but that does not end the inquiry:

Social media presents some unique challenges to courts in their efforts to determine the proper scope of discovery of relevant information and maintaining proportionality. While it is conceivable that almost any post to social media will provide some relevant information concerning a person’s physical and/or emotional health, it also has the potential to disclose more information than has historically occurred in civil litigation. While we can debate the wisdom of individuals posting information which has historically been considered private, we must recognize people are providing a great deal of personal information publicly to a very loosely defined group of “friends,” or even the entire public internet. People have always shared thoughts and feelings, but typically not in such a permanent and easily retrievable format. No court would have allowed unlimited depositions of every friend, social acquaintance, co-employee or relative of a plaintiff to inquire as to all disclosures, conversations or observations. Now far more reliable disclosures can be obtained with a simple download of a social media history. A few clicks on the computer and you shortly have what can consist of hundreds of pages of recorded postings and conversations of a party. There can be little doubt that within those postings there will be information which is relevant to some issue in the litigation. It is equally clear that much of the information will be irrelevant.

Just because the information can be retrieved quickly and inexpensively does not resolve the issue. Discovery can be burdensome even as it is inexpensive. Courts have long denied discovery of information which was easy to obtain, but which was not discoverable….

The Defendant correctly observes that there would be very little time or expense involved in the initial production of Plaintiff’s Facebook history. That’s true on the front end. The problem is that such vast information has the potential to generate additional discovery or impact trial testimony. It’s not difficult to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress or discussing life events which could be conceived to cause emotion upset, but which is extremely personal and embarrassing. There is also substantial risk that the fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims. That being said, Defendant has a legitimate interest in discovery which is important to the claims and damages it is being asked to pay. Information in social media which reveals that the plaintiff is lying or exaggerating his or her injuries should not be protected from disclosure. Courts must balance these realities regarding discovery of social media and that is what most of the courts which have addressed this issue have done….

Granting access to Plaintiff’s entire Facebook history would provide minimal relevant information while exposing substantial irrelevant information. As such the discovery would exceed the proper limits of proportionality.

The court orders the following discovery:

1. The Plaintiff is ordered to produce all post-June 28, 2015 Facebook history and photos which relate to Plaintiff’s significant emotional turmoil, any mental disability or ability, or relate significant events which could reasonably be expected to result in emotional distress.

2. The Plaintiff is ordered to produce all post-June 28, 2015 Facebook history and photos which address or relate to the accident and its aftermath or any of her resulting physical or emotional injuries.

3. The Plaintiff is ordered to produce all post-June 28, 2015 Facebook history and photos which relate or show the Plaintiff’s level of activity.

In a footnote, the court adds: “The Plaintiff is to err on the side of disclosure and if the Plaintiff is uncertain, the relevant documents shall be provided to the Court for in camera review.” Note the court does not distinguish the different privacy settings for Facebook posts. For example, the court could have been more generous with the Facebook posts set to “public” than others, but private and public posts are treated the same.

So who won this discovery ruling? The defendants have to be irritated that they will get a filtered view of the Facebook account, with the potential for evidence omission or suppression. The defendants also didn’t get a chance to crack into the Facebook account pre-accident, which could theoretically have led to some damning before-and-after comparisons or clues about preexisting conditions. On the other hand, the court ordered the plaintiff to produce a wide range of post-accident material, and the footnote makes it clear that the court will be angry if the plaintiff gets caught trying to be cute. So it wouldn’t surprise me if the plaintiff decides to produce all post-accident Facebook material rather than try to engage in grammatical parsing of the court’s order. So it’s possible/probable that carefully worded discovery requests, offering the veneer of precision, will reach about the same outcome as having complete access to the account log.

Venkat’s comments: I agree this court, like most others before it, does not offer any silver bullets to resolving social media discovery disputes. The court does identify a few interests of those resisting broad discovery requests that courts typically have not focused on:

The problem is that such vast information has the potential to generate additional discovery or impact trial testimony. It’s not difficult to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress or discussing life events which could be conceived to cause emotion upset, but which is extremely personal and embarrassing. There is also substantial risk that the fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims.

Neither of these seem particularly new to social media evidence. The same could be said of email evidence. The court’s resolution is similar to how courts deal with e-discovery: come up with relevant parameters and then rely on the party producing the discovery to filter and generate results.

Case citation: Gordon v. T.G.R. Logistics, Inc., 2017 WL 1947537 (D. Wy. May 10, 2017)

Some related posts:

* Judge Scolds Litigant For Making Facebook Account “Private” During Litigation–Thurmond v. Bowman
* ‘Deactivated’ Facebook Account Is Discoverable In Litigation
* Are Facebook Photos More Discoverable In Litigation Than Other Social Media Content?
* Emotional Distress Claim Doesn’t Support Fishing Expedition for Social Media Evidence
* Facebook Password Exchange Between Parties to Litigation Results in Spoliation Debacle – Gatto v. United Airlines
* Social Media Evidence Roundup – January 2013 Edition
* Virginia Supreme Court: Litigant Who “Cleans up” His Facebook Page May Be Sanctioned
* Court Orders Password Turnover and In Camera Review of Social Media Accounts – EEOC v. Original Honeybaked Ham Co.
* Social Media Discovery Case Update and Tips for Those Seeking Discovery
* A Dark Side of Data Portability: Litigators Love It
* Social Media Discovery Roundup
* Court Orders Production of Five Years’ Worth of Facebook and MySpace Posts – Thompson v. Autoliv
* Courts Continue to Grapple with Discovery Disputes Around Social Networking Evidence
* Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party–In re DLW
* Connecticut Supreme Court Says no Error in Admission of Facebook Photos at Probation Hearing — State v. Altajir
* Facebook Evidence Suppressed in Skater Brawl Prosecution–People v. Bignone
* Pennsylvania Court Orders Personal Injury Plaintiff to Turn Over Facebook Password to Defendant — Largent v. Reed
* Insurance Company’s Request to Compel Production of Facebook Password Fails (with Costs)–Chauvin v. State Farm Mutual
* Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute — Zimmerman v. Weis Markets, Inc.
* Court Conducts in camera Review of Plaintiff’s Facebook Page to Resolve Discovery Dispute — Offenback v. Bowman
* Court Denies Request for Discovery of Facebook and Twitter Account Information, Finding that the Request is a “Digital Fishing Expedition”
* Contrary LinkedIn Evidence Crushes Witness’ Testimony — Blayde v. Harrah’s Entertainment
* MySpace Profile and Photo Evidence Used to Support Conviction for “Participation in Criminal Gang Activity” — State v. McCraney
* Request for Discovery of Facebook Profile and Photos Rejected as a Fishing Expedition — McCann v. Harleysville Insurance
* It May be Best to Shut Down Your Facebook Account While You are on Probation — State v. Altajir
* Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case — McMillen v. Hummingbird Speedway
* Deleted Facebook and MySpace Posts Are Discoverable–Romano v. Steelcase
* Judge Offers to Facebook ‘Friend’ Witnesses in Order to Resolve Discovery Dispute — Barnes v. CUS Nashville

Source: Eric Goldman Legal