Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

Google recently announced revised Terms of Service (ToS) and Privacy Policy which go into effect on March 1, 2012. Google claims that the ToS were rewritten “to make them more readable and to reduce the repetition and legalese.” And with regards to the Privacy Policy Google stated:

We’re getting rid of over 60 different privacy policies across Google and replacing them with one that’s a lot shorter and easier to read. Our new policy covers multiple products and features, reflecting our desire to create one beautifully simple and intuitive experience across Google. 

I encourage you to read Google’s new ToS and Privacy Policies, but my personal experience is that about 1% of users actually ever bother. Please read my eCommerce Times legal columns about ToS and Privacy Policies to get a better idea how important the legal terms are.
 

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After getting a new iPhone that had test pictures inside the Chinese factory where is was made, Mike Daisey was intrigued to learn more about the individuals who actually make the Apple products (and Dell, and many others). Daisey recently told his story on This American Life radio about his trip to China to see the Foxconn plant in Shenzhen that had about 400,000 workers. He discovered that children, no more than 12 years old work on the assembly lines, slept in Foxconn dorms, and there were many suicides. Students and Scholars Against Corporate Misbehavior (SACOM) have challenged Apple, and other computer companies, for abusing workers for working too many hours and using toxic chemicals among many abuses.

Daisey’s story probably helps explain why so many cell devices and computers are made in China where the laws do not protect children as SACOM claims. So it seems that modern technology is not so clean and has an uglier side that we don’t hear much about.

 

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Since WikiLeaks’ addresses were provided to Twitter, a Judge ruled that it was no longer private since the “information has already been disclosed.” On January 4, 2012 US District Judge Liam O’Grady ordered Twitter to produce WikiLeaks records as reported by Bloomberg:

Litigation of these issues has already denied the government lawful access to potential evidence for more than a year…. The public interest therefore weighs strongly against further delay.

Who do you follow on Twitter?

On Jan. 1, I found that these Twitter names had hordes of followers: @ladygaga had 17,554,645, @Starbucks had 1,927,255, and @noahkravitz had 24,273 which anyone on Twitter can view. Please read my January column in eCommerce Times about Twitter followers in the PhoneDog v. Kravitz case entitled “New Legal Challenge - Who Owns Followers on Twitter?”

Clearly Twitter information appears to not be so private or secret.
 

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BYOD has created new challenges for those employers who encourage their employees to buy their own cell phones, tablet devices, and/or computers. After a recent discussion about BYOD my good friend Galen Gruman (Executive Editor of InfoWorld for Features) posted an InfoWorld blog “Lost in BYOD's uncharted legal waters” which includes many important legal and business issues.

Before posting the blog Galen wrote an excellent 29 page report called the “BYOD and Mobile Strategy Deep Dive” which has the following summary:

iPhones, iPads, Androids, and more are joining your business's suite of technology tools, driven by user demand and need. Most companies have opened up their networks to such devices, but big questions remain on how to do so securely, how to manage the new breed of devices to ensure compliance and information security while not unduly burdening users.

A 2010 US Supreme Court 9-0 ruling declared that employees are not entitled to privacy if they use an employer’s issued device, so what level of privacy is there for BYODs? Will employees using BYODs be entitled to privacy if they are conducting business for their employers? Or will the employees using BYODs be entitled to privacy if the employer reimburses the employee for the cost(s) of the BYOD? 

Interesting questions and in the future the Courts will let us know….so stay tuned.
 

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eDiscovery has transformed litigation and required that all lawyers understand Information Technology since more than 95% of all information is now electronic. I am happy to report that staring January 9, 2012 I will begin teaching a brand new course on eDiscovery & eEvidence at the SMU Dedman School of Law in Dallas. The SMU law students will submit term papers on eDiscovery & eCommerce, and I have a number of guests who will lecture including a Texas State District Judge, former General Counsel, Chief Information Officer, and eDiscovery Professionals.

This will be my 26th year teaching as an Adjunct Professor at SMU. For the past 11 years I have taught courses on the Law of eCommerce, and while teaching that course I found that it was easier to create my own materials than rely on a casebook. I created my own materials since there are no current law casebooks on eDiscovery & eEvidence. 

I had help creating the Syllabus and planning the course from Allison O. Skinner. Allison and I co-founded the American College of eNeutrals, and she has also been an Adjunct Professor of eDiscovery at the University of Alabama School of Law and the Thomas Goode Jones School of Law, Faulkner University.

I welcome your comments about my Syllabus on my eDiscovery & eEvidence website.
 

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A Judge in Boston sealed the court records after a brief hearing challenging the District Attorney’s subpoena to Twitter to get the identity of certain accounts. The American Civil Liberties Union challenged the subpoena and was very disappointed in the sealing of the records.  

The New York Times reported: 

The police in Boston and the Suffolk County district attorney issued the subpoena in an effort to get information about the Twitter account @P0isAn0N and other activity on the social network related to the Occupy Boston protests. The owner of the @P0isAn0N account had also linked to personal information about Boston police officers that had been stolen in a hacking attack. 

However the subpoena also requested of the identity of Guido Fawkes, well-known British blogger named Paul Staines who by all accounts was not involved with Occupy Boston. Whoever issued the subpoena apparently did not understand the difference between hashtag and an account. Here’s the list of names in the subpoena:

Guido Fawkes
@p0isAn0N
@OccupyBoston
#BostonPD
#d0xcak3

Since Twitter lost a similar battle over anonymity over WikiLeaks it will be interesting to see how this court action plays out.

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Phonedog.com sued a former employee for theft of their customer list when his 17,000 Twitter followers went to his new Twitter name after he quit. The New York Times reported that Noah Kravitz was a writer for Phonedog.com which "is a highly interactive mobile news and reviews resource that attracts a community of more than 2.5 million unique visitors each month." Until Kravitz quit in October 2010 he had 17,000 Twitter followers for his Twitter name Phonedog_Noah, and when he left Phonedog agreed to let Kravitz keep the Twitter name in exchange for his agreement that he would post Tweets for Phonedog from time to time.

Kravitz change his Twitter name to NoahKravitz and the 17,000 followers went with him. 8 months later Phonedog.com sued Kravitz “saying the Twitter list was a customer list, and seeking damages of $2.50 a month per follower for eight months, for a total of $340,000.”

How can Phonedog.com claim that followers of Twitter is a customer list which can be protected under trade secret laws? In order to be a trade secret in the US a company must be able to prove that the secret gives a company a particular business advantage and the owner has properly protected the trade secret.

Here Phonedog.com is asserting that Twitter followers are customer list (a trade secret), however the details about Twitter followers identity are stored on Twitter. Twitter’s Terms of Service do not obligate Twitter to keep any information secret. As a matter of fact, if you search the Twitter Terms of Service the word “secret” is nowhere to be found.

This will be an interesting case to watch, but since 95% of all lawsuits settle without trial it is most likely the parties will settle the dispute and the Courts will not rule on this novel trade secret claim.

How could the facts in this lawsuit affect you and your Social Media activity?
 

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A court recently ordered an accident victim to provide her “Facebook username email and password” to a defendant in an auto accident lawsuit. After a chain-reaction auto accident Jessica Largent and her husband sued Jessica Reed Rosko for negligence that led to serious and permanent physical damages, and loss of consortium. (Keith Largent and Jennifer Largent v. Jessica Reed et al, Civil Action –Law No. 2009-1823, Court of Common Pleas, 39th Judicial District, Franklin County, Pennsylvania). 

Ms. Largent testified at her deposition that she had a Facebook profile which she used to regularly play a game called FrontierVille. As a result Ms. Rosko filed a motion to gain access to Ms. Largent’s Facebook profile and on November 7, 2011 Pennsylvania State Judge Richard J. Walsh granted the motion and issued this Order:

…Plaintiff Jennifer Largent shall turn over to Defense counsel her username email and password within 14 days of this Order. Plaintiff shall not delete or otherwise erase any information on her Facebook account. After 35 days from the date of this Order, Plaintiff may change her Facebook login to prevent further access by Defense counsel.

This is not the first time Facebook login information has been ordered disclosed to adverse parties, and given the continued growth in Social Media activity we will see more of these types of orders in the future.

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 Earlier this week Carrier IQ representatives met with officials at the FTC, FCC, and with the staff of a number of Senators. For more details about Carrier IQ please read my eCommerce Times column “Carrier IQ and the US' Escalating Privacy Risk Level.”

The Washington Post reported that Carrier IQ Andrew Coward (senior vice president for marketing) said “This week Carrier IQ sought meetings with the FTC and FCC to educate the two agencies . . . and answer any and all question”…but he was “not aware of an official investigation.” As well, the scope of the privacy controversy has enlarged. In addition to class action lawsuits against Carrier IQ other class-actions have been filed against AT&T, Sprint Nextel, Apple, T-Mobile USA, HTC, Samsung, and Motorola.

Stay tuned for more about Carrier IQ and privacy.

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