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

LinkedIn reports that the wealthiest investors have adopted Social Media regularly with about 50% using LinkedIn, and “72% use Facebook and 27% use Twitter.” Forrester Research describes about “40 million” individual investors as Mass Affluent who have assets of $100,000 to $1 million excluding the value of their homes and these “Mass Affluent use social media as an educational resource for financial information and are greatly influenced by what they learn.”

The LinkedIn report explains how the Mass Affluent use Social Media for professional purposes:

• 1 in 2 use social to CONNECT with professionals.
• 1 in 3 use social to CONSUME professional content.
• 1 in 4 use social to CREATE professional content.

This LinkedIn Report should be a message to all professionals that the use of Social Media will assist in communicating with the wealthiest among us.

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Pew Research has reported that since 2002 about 92% of adults in the US use email everyday but how many people include in their wills what happens to the email and Social Media accounts? The answer is - not many.

Dallas lawyer Ira Silverman, who specializes in wills, trusts and probate, offers this advice:

• Include language in your will to authorize access to and to transfer ownership of all your digital assets, data, media and information.
• Also, keep a list of all such information for your survivors -- and include applicable passwords for -- social media, email accounts... any site where you have to log in with a user ID and password."

To read more about these issues please read my May column in eCommerce Times entitled “Where Your Social Media Accounts Go When You Die?”
 

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The Pentagon’s annual report to Congress explicitly accuses China of cyberwarfare activities directed against the US military. The New York Times reported that it “was unclear why the administration chose the Pentagon report to make assertions that it has long declined to make at the White House” and went on to state that:

China’s primary goal as stealing industrial technology, but said many intrusions also seemed aimed at obtaining insights into American policy makers’ thinking.

Among other things the Pentagon report stated that China’s cyberwarfare “could serve Chinese military operations in three key areas:”

• First and foremost, they allow data collection for intelligence and computer network attack purposes.
• Second, they can be employed to constrain an adversary’s actions or slow response time by targeting network-based logistics, communications, and commercial activities.
• Third, they can serve as a force multiplier when coupled with kinetic attacks during times of crisis or conflict.

It will be import to follow what Congress does in response of this Chinese cyberwarfare report.
 

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A juror was held in contempt of court for texting during a trial in violation of standard jury instructions requiring the jury “to pay close attention to all of the witnesses.” On April 16, 2013 Marion County Oregon Judge Dennis Graves sentenced 26 year old Benjamin Kohler to jail for contempt for 2 days for texting while a witness was testifying about the armed robbery defendant.

The Salem Statesman Journal reported that Mr. Kohler was caught texting when the courtroom lights were dimmed to allow a witness to show a video interview with the defendant. With the lights dimmed the glow from Mr. Kohler’s cell phone was apparent so the Judge immediately dismissed all the jurors from the courtroom except Mr. Kohler whom the Judge declared in contempt.

The Court Report included Judge Graves’ courtroom statement to Mr. Kohler that included his message to other jurors to pay attention:

The duty to serve as a juror must be taken very seriously. Every juror has the responsibility to devote his entire attention to the witnesses and evidence being presented. In this case, Mr. Kohler failed to meet his obligations and failed to honor the direction of this court. My hope is that he will use his time in jail to reflect upon his behavior.

The content of Mr. Kohler texting was not made public so it likely irrelevant since the Judge’s admonish was only paying attention not texting about the defendant or facts in the trial. Ultimately Mr. Kohler only spent only one day in jail for contempt, and the defendant was convicted.

Surely we will see more headlines about juror texting given its volume and prevalence, but this case may be different since Mr. Kohler was in contempt for not paying attention to a witness which is extreme. How can Judges know if any other juror is paying attention?

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The FBI wants Congress to pass laws that would force Facebook, Google, and others to intercept Internet online communications when they occur or penalize those companies who do not comply. The Washington Post reported that the FBI:

…concerns that it is unable to tap the Internet communications of terrorists and other criminals, the task force’s proposal would penalize companies that failed to heed wiretap orders — court authorizations for the government to intercept suspects’ communications.

Andrew Weissmann, the FBI’s general counsel, recently said:

We don’t have the ability to go to court and say, ‘We need a court order to effectuate the intercept.’ Other countries have that. Most people assume that’s what you’re getting when you go to a court.

The FBI’s proposal would supplement CALEA (1994 Communications Assistance for Law Enforcement Act) which became less effective in “2010, when Google began end-to-end encryption of its e-mail and text messages after its networks were hacked. Facebook followed suit. That made it more difficult for the FBI to intercept e-mail by serving a court order on the Internet service provider, whose pipes would carry the encrypted traffic.”

The proposed law should make clear that “CALEA extends to Internet phone calls conducted between two computer users without going through a central company server — what is sometimes called “peer-to-peer” communication.” If passed in the current form under the new law:

…a court could levy a series of escalating fines, starting at tens of thousands of dollars, on firms that fail to comply with wiretap orders, according to persons who spoke on the condition of anonymity to discuss internal deliberations. A company that does not comply with an order within a certain period would face an automatic judicial inquiry, which could lead to fines. After 90 days, fines that remain unpaid would double daily.

Leslie Harris President of the Center for Democracy & Technology opposes the propose law:

What the FBI is proposing sounds benign, but it comes with such onerous penalties that it would force developers to seek pre-approval from the FBI. No one is going to want to face fines that double every day, so they will go to the FBI and work it out in advance, diverting resources, slowing innovation, and resulting in less secure products.

Clearly laws from 20 years ago need to be updated to how the Internet communications work today, and it will be interesting to see the debate in Congress.
 

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A group of Chicago Police are suing for overtime pay since the City allegedly expected the officers “to be available twenty-four [hours] per day via Blackberry.” In their lawsuit the officers “felt obligated to respond to these email communications and telephone call while off duty.”

Huffingtonpost reported that the officers claimed:

…police brass pressured subordinates in the department's organized crime bureau to answer work-related calls and emails on their BlackBerrys, and then also dissuaded the officers from filing for overtime.

On January 14, 2013 US Magistrate Judge Sidney Schenkier issued an Order that included his opinion that the officers’ Blackberry “responses might constitute work.”

This lawsuit may help clear up employee use of employer issued devices and establish some legal boundaries between work and personal content that may apply to employee owned devices (e.g., BYOD). 
 

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Apple users' privacy may be at risk, as Apple finally revealed to Wired that Siri data is kept for 2 years even though that is not mentioned on Apple’s FAQs about Siri. In March 2012 the American Civil Liberties Union raised the issue about Siri privacy and claimed that the Apple Privacy Policy was unclear but Siri did collect “User Data” including the following:

• The names of your address book contacts, their nicknames, and their relationship with you (for example, “my dad”, or “work”)
• Your first name and nickname
• Labels you assign to your email accounts (for example, “My Home Email”)
• Names of songs and playlists in your collection

More than a year later, on April 19, 2013 an Apple spokesperson responded to Wired that Apple “may keep anonymized Siri data for up to two years,” but Apple:

…takes steps to ensure that the data is anonymized and only collects the Siri voice clips in order to improve Siri itself.
…If a user turns Siri off, both identifiers are deleted immediately along with any associated data.”

Wired went to explain:

Here’s what happens. Whenever you speak into Apple’s voice activated personal digital assistant, it ships it off to Apple’s data farm for analysis. Apple generates a random numbers to represent the user and it associates the voice files with that number. This number — not your Apple user ID or email address — represents you as far as Siri’s back-end voice analysis system is concerned.

Once the voice recording is six months old, Apple “disassociates” your user number from the clip, deleting the number from the voice file. But it keeps these disassociated files for up to 18 more months for testing and product improvement purposes.

Since the Apple Siri privacy policy is unclear about how Apple maintains and uses Siri data this information about keeping data for 2 years is likely a surprise to everyone. Apple’s lack of candor about privacy should concern everyone given the scope of Apple’s products.
 

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Ownership of Social Media content and contacts got a little clearer by a court ruling. But in the case of LinkedIn users, they give LinkedIn an irrevocable and perpetual license to everything posted. That means LinkedIn has an ownership claim to everything posted, as a result LinkedIn really has an ownership claim to all content and connections.

Nevertheless on March 12, 2013 US District Judge Ronald L. Buckwalter ( Eastern District of Pennsylvania) ruled that Dr. Linda Eagle’s former employer Edcomm did not own Dr. Eagle’s LinkedIn content and connections rather they “belonged to Eagle alone and she was individually bound by the User Agreement.”

Although Dr. Eagle won the case, but she got no damages. To learn more about Dr. Eagle’s lawsuit and Judge Buckwalter’s ruling please read my eCommerce Times April 2013 column entitled “Who Gets LinkedIn When an Employee Is Kicked Out?”

Based on Dr. Eagle’s case we will likely see contracts between employers and employees that spell who owns Social Media content and connections, which contracts will likely be tested in courts.
 

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A new feature on Google called Interactive Account Manager now allows Google users to selected trusted contacts to receive data from many Google services. On April 11, 2013 posted a blog entitled “Plan your digital afterlife with Inactive Account Manager.” Amusingly enough Google admits the title for the new service “not a great name” but does allow Google users to:

• choose to have your data deleted — after three, six, nine or 12 months of inactivity.
• select trusted contacts to receive data from some or all of the following services: +1s; Blogger; Contacts and Circles; Drive; Gmail; Google+ Profiles, Pages and Streams; Picasa Web Albums; Google Voice and YouTube.

However before Google takes any action Google will “first warn you by sending a text message to your cellphone and email to the secondary address you’ve provided.”

Facebook allows accounts to be memorialized, but not to allow access to accounts by loved ones.

Google’s new Inactive Account Manager appears to be unique, but brought about because many families have been denied access to Internet and Social Media content after their loved ones die since no such digital afterlife had been planned before.

ABC News reported in February 2013 that a proposed bill in New Hampshire that “would allow control of someone's Facebook, Twitter, and other accounts such as Gmail to be passed to the executor of their estate after death.”  Also ABC reported that:

Five other states, including Oklahoma, Idaho, Rhode Island, Indiana and Connecticut, have established legislation regulating one's digital presence after death. Rhode Island and Connecticut were first, but their bills were limited in scope to email accounts, excluding social networking sites.

Surely we will see more new laws for Internet Wills and more such services for digital afterlife from other Internet and Social Media sites.
 

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