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

President-Elect Obama’s Twitter account was hacked “offering his more than 150,000 followers a chance to win $500 in free gas.” Twitter settled the FTC’s charges that “that it deceived consumers and put their privacy at risk by failing to safeguard their personal information, marking the agency’s first such case against a social networking service.” In my recent testimony before the Texas Senate I highlighted the problem with violating FTC privacy laws, and obviously this is just the beginning of Social Media claims that we will all deal with about Internet privacy.

FTC Settlement Terms

Here’s what Twitter agreed to as part of its settlement:

Twitter will be barred for 20 years from misleading consumers about the extent to which it protects the security, privacy, and confidentiality of nonpublic consumer information, including the measures it takes to prevent unauthorized access to nonpublic information and honor the privacy choices made by consumers. The company also must establish and maintain a comprehensive information security program, which will be assessed by an independent auditor every other year for 10 years.

Twitter Adds Location to Messages

Recently Twitter announced that it would allow “users tag their messages with their location.” So given the FTC settlement it seems that adding location would seriously impact privacy if one can easily learn when the tweets are originating.

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Viacom lost its $1 billion lawsuit against Google and YouTube for alleged copyright infringement when a judge granted summary judgment. YouTube’s defense was that it used the “safe harbor” protection of the Digital Millennium Copyright Act (DMCA) where YouTube would remove allegedly infringing videos after being notified, and after three offenses a poster would be banned from YouTube. On June 23, 2010 US District Judge Louis Stanton granted YouTube and Google’s motions in defense of claims brought by Via and other plaintiffs. In the 30 page Opinion Judge Stanton pointed out that “over 24 hours of new video-viewing time is uploaded to the YouTube website every minute.”  I know that YouTube is responsive to the DCMA takedown requests because YouTube has removed videos which have infringed copyrights of my clients.  The DCMA takedown procedures rules are part of YouTube's Terms of Service.

Viacom to Appeal

Viacom plans an appeal, but at this moment this appears to be a monumental ruling for Google and YouTube which helps define Copyright law on the Internet. As a trial lawyer my experience is that Judges rarely grant summary judgment (there are no facts in dispute, and the moving party wins on the law without a trial).  It is more likely than not that Google and YouTube will prevail on the appeal since the trial Judge granted summary judgment.  This case is important given size of YouTube and its role in changing Social Media.

YouTube Turns 5

When YouTube celebrated its fifth birthday in May, 2010 it announced that it passed “two billion video views a day.” YouTube has perennially lost money so there were many analysts who criticized Google’s $1.65 billion purchase of YouTube in 2006, which was made worse when Viacom brought its Copyright infringement lawsuit in 2007. YouTube has been developing partnerships with music labels to compete with "Hulu.com, the joint venture of Fox, NBC and ABC." So Judge Stanton’s Order should help clear Google and YouTube’s path for success and bring clarify about the DMCA.

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The Ontario, CA Police Department (OPD) did not violate the 4th Amendment by reviewing text messages sent from a work pager. Apparently the OPD’s warrantless audit found Officer Quon had sent or received 456 messages, but only 57 were work-related. The OPD Computer Policy included the following provisions that the OPD “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” The Court ruled that the “warrantless review of Quon’s pager transcript was reasonable … because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope.” Today so many employees use cell phones and PDA provided by employers that surely the Supreme Court’s ruling will impact all employees, not just government employees.

Privacy Ruling in California Court

The Supreme Court ruling in the Quon case should also impact the May 26, 2010 ruling where US District Judge Margaret Morrow ruled that messages posted on Facebook and MySpace may not be subpoenaed. Based on the Supreme Court ruling in Quon, employees who post private messages on social media using their work computers, cell phones, or PDAs may not be able to claim privacy communications. The ruling in the Quon case is one more reason for Congress to review the 1986 Stored Communications Act given the use of social media communications. Stay tuned on how the Quon ruling will impact all businesses.
 

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On Tuesday, June 15th I will speak on the “Social Media Impact on Law” at the Dallas Bar Association Franchise & Distribution Section meeting at noon at Belo Mansion. My speech will include the following topics:

• How Businesses Use Social Media – LinkedIn, Facebook, MySpace, Twitter, Yelp, Blogs
• Search Engines – Google, Yahoo!, Bing, WolframAlpha
• Privacy and Anonymity
• Terms of Service Jurisdiction
• Protecting Domain Names and Trademarks

Please join me at Belo and I welcome comments about my talk.

Kevin O’Keefe Addressed the State Bar of Texas (SBOT) Annual Meeting

Lexblog founder/CEO and good friend Kevin O’Keefe spoke on Thursday, June 10 in Fort Worth at the SBOT Annual Meeting about his favorite topic – “You Online Presence: Getting it Right, Ethically, with Twitter and Other Social Media.” Also my friend and SBOT web manager John Sirman spoke, and you can read more on Kevin’s blog “Real Lawyers Have Blogs.” Kevin has been an outstanding Social Media leader and I greatly appreciate his enthasiam and sage advice.

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On June 8th I attended Mashable and CNN’s conference about the intersection of digital media, news, and entertainment. Among other notable presentations was CNN’s medical correspondent Dr. Sanjay Guptap’s (renowned neurosurgeon) interview of Mashable’s founder Pete Cashmore and CNN.com’s general manager KC Estenson. You can watch the video of the interview about the how CNN collects citizen journalist news from Social Media in addition to its world-wide news professionals, and the merger of Social Media with 24/7 TV. Another fascinating presentation about the “Science of Social Media” was given by Duncan Watts (Yahoo!’s Principal Research Scientist). Clearly the merger of Social Media, TV, and news has happened, but predicting the future is the next challenge.

NEAT BADGE FROM THE EVENT!

Former eBay and HP’s CEOs Win Primaries

Also on June 8th Meg Whitman (former eBay CEO) and Carly Fiorina (former HP CEO) won primary elections for the fall’s election for California governor and US Senator. Of course having high-tech leaders in the US Congress is not entirely new since New Jersey Senator Frank Lautenberg founded ADP (the payroll processing giant) and was first elected in 1982. But with the advent and growth to Social Media these primary wins are not a surprise.

High-Tech Politics

OpenSecrets.org reported that individuals and political action committees in high-tech businesses increased their donations “43% between election cycles in the last decade” to $41.4 million in 2008. Last year Google increased its lobby expenditures to $4 million. One can only expect more Social Media leaders to pursue elected offices since clearly President Obama proved that Social Media is the most powerful communications tool available today. Be assured that Google, Yahoo!, Microsoft, and other major Internet and IT companies are involved in future of politics!

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A Judge ruled that Facebook wall postings and MySpace comments may not be subpoenaed based on the 1986 Stored Communications Act which is the same statute before the US Supreme Court in Quon v. Arch Wireless. US District Judge Margaret Morrow’s May 26, 2010 37 page Order in Buckley H. Crispin v. Christian Audigier, Inc. et al reversed a ruling from an US Magistrate Judge that defendants in a copyright infringement case could not subpoena private message on Facebook MySpace. This ruling is particularly interesting since the April 7, 2010 White House Order that all postings on blogs and social media sites are public meetings under federal law. Clearly courts will be vexed by these complex issues as social media continues to grow and change communications. It is any wonder that the 1986 Stored Communications Act may need to be updated or totally replaced since clearly the courts and the White are not in synch?

Yahoo! Plans its Social Media

With 280 million email users it’s no wonder that Yahoo! will launch its social media services to allow exchange of comments, pictures, and the like. Given all the current issues with Facebook privacy and Google’s Buzz it’s no wonder that Yahoo! head of privacy claimed that “ We’ve been watching and trying to be thoughtful about our approach.” Clearly we will all be watching to see the impact of Yahoo! entry into social media, particularly as Yahoo! search engine decline in popularity in the US. Will email traffic overcome the lack of search engine traffic?

More Google Wi-Fi Woes – Now Canada

Recent reports now indicate that the Privacy Commissioner of Canada started an investigation about Google collection of Wi-Fi network data. Since Germany, France, Italy, and the Czech Republic are investigating Canada’s entry into the fray is no surprise. Google’s defense that other companies including Skyhook and organizations like the German Fraunhofer Institute does not seem to be much help at this juncture. The outcome of the Wi-Fi privacy issues may also impact Google maps which are tied together.

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