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

The US Constitution protects the disclosure of what reading and video materials citizens read and view, in spite of the North Carolina Department of Revenue’s best efforts. US District Judge Marsha Pechman granted Amazon’s summary judgment that precludes disclosure of Amazon’s “customers’ names, addresses or any other personal information.” The order states that “Amazon has conducted nearly 50 million transactions with North Carolina residents from August 1, 2003 to February 28, 2010, apparently without collecting or remitting North Carolina sales and use taxes.” As result of these sales transactions there was a sales tax dispute and Amazon has already provided “order ID number, seller, ship-to city, county, postal code, the non-taxable amount of the purchase, and the tax audit record identification.” Amazon filed its lawsuit in Washington State to avoid disclosing the customer personal information, and the American Civil Liberties Union joined Amazon. Luckily the Constitution protects the information that we read and view, however we will clearly see more challenges of this sort to learn about personal information.

Texas Bills Amazon $269 Million for Unpaid Sales Taxes

Amazon started operations in Texas in 2005 and not paid any sales taxes, so the Texas Comptroller of Public Accounts recently demanded that Amazon pay Texas $269 million. It’s easy to understand why state and local governments want sales tax revenue, but whether there’s a taxable transaction is not that easy to figure out. Amazon is a big target since 2009 sales were $25 billion. Recently I bought a book from Amazon, but where the taxable transaction took place is what’s hard to determine. Amazon is in Washington State, but the server could be in California, and the book shipped from Kansas to me in Texas. What difference does it make that Amazon has any business operations in Texas since it was not part of my purchase? Surely we can count on Internet sales tax issues to continue for some time.
 

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Google will not be accused of copyright infringement by posting the Dead Sea Scrolls unlike the current litigation about Google’s Books Library Project where Google is scanning millions of books to be freely available. Although the litigation continues, settlement looms on the horizon but the date for claims to be filed has been extended to March 31, 2011. The library partners include: Austrian National Library, Columbia University, Harvard University, New York Public Library, Oxford University, Princeton University, University Library of Lausanne, and many other famous institutions. Many notable scholars have weighed in that Google’s Library Project is great including Harvard Law Professor Lawrence Lessig "[Google Books] could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible." On the other hand many authors believe the value of their copyrights will be lost or diminished if Google makes their writings available for free.

Dead Sea Scrolls

Computerworld announcement about the Dead Sea Scrolls is a monumental event in history:
 

Google is working with the Israel Antiquities Authority (IAA) to digitize the Dead Sea Scrolls and make them available online. The collection of documents consists of about 30,000 fragments of the scrolls, which are approximately 2,000 years old…. This is the first time that the collection has been photographed in its entirety since the 1950's, according to the Israel Antiquities Authority, an Israeli governmental authority tasked with regulating excavation and promoting research.

The publication on Google of the Dead Sea Scrolls seems to fit into Wikipedia’s Vision Statement included in its Terms of Use: “Imagine a world in which every single human being can freely share in the sum of all knowledge. That's our commitment.” What an exciting time in the evolution of the Internet!
 

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A recent report of a WikiProject Smithsonian Institution should add credence to Wikipedia, since there are more than 3.4 million articles in English of the +17 million total Wikipedia article. Of course there must be a reason to believe Wikipedia, after all the 16 US intelligence agencies rely on Wikipedia’s version called Intellipedia. Since many search engine results include high rankings for Wikipedia, most people rely on Wikipedia on a day to day basis. The endorsement of more and more institutions like the Smithsonian Institution will improve Wikipedia’s credibility.

When Will Judges Rely on Wikipedia?

As more people participate in Social Media it’s likely that Judges will use Wikipedia for their personal day to day use of information on the Internet. So at some point Judges will begin to accept Wikipedia citations as authority. The Courts will change since Social Media is changing communications and information around the world. Why should Wikipedia be considered less reliable than Law Review articles, or newspaper articles, or editorial comments?
 

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Facebook now offers users the ability to download all of their content in a simple zip file format, but this doesn’t solve privacy concerns. Sure it’s nice to be able to download all the content, but in the meantime Facebook still stores lots of valuable information about users.

Let’s see a show of hands- how many of you have ever taken the time read Facebook’s Privacy Policy? … not many hands were raised which I find is the norm.

In the meantime here’s what Facebook says about site activity information:

We keep track of some of the actions you take on Facebook, such as adding connections (including joining a group or adding a friend), creating a photo album, sending a gift, poking another user, indicating you “like” a post, attending an event, or connecting with an application. In some cases you are also taking an action when you provide information or content to us. For example, if you share a video, in addition to storing the actual content you uploaded, we might log the fact that you shared it.

eMarketer.com July 2010 estimates are that the advertising revenue for Facebook in 2010 is $1.28 billion which is about a 50% increase from the 2009 revenue of $665 million. It doesn’t take rocket science to see that Facebook monetizes users’ data and so it’s hard to image that there is any real privacy on Facebook at all since Facebook sells information about everyone and what they do on Facebook.

What about Terms of Service and Privacy Policies?

Generally courts around the world enforce Terms of Service and Privacy Policies, but I continue to be amazed that so few people ever read these contracts that legally bind them to websites, and particularly Social Media sites. As part of my Law of eCommerce class I regularly review Terms of Service and Privacy Policies during each semester, and I find it fascinating that like businesses have such different business views….take a look at Google and Bing’s Terms of Service and see how differently they bind their users even though they are in the same search engine business. For instance, Google does not require users to indemnify Google for claims brought against Google, but Bing does require users to indemnify Bing (Microsoft) if a claim is made against Bing based on the user’s actions.

Think about Terms of Service and Privacy Policies

Often I find that my clients merely copy Terms of Service and Privacy Policies for their websites without taking into account that they may be in the software development and licensing business, but since they are not IBM, it’s not a good idea to just copy IBM’s Terms of Service and Privacy Policy as if they will properly protect themselves. One should use good judgment about how to bind users contractually to websites, and make sure the Terms of Service and Privacy Policies are consistent with the way their conduct their businesses.

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Allowing Google to access your cell GPS will permit Google to make suggestions about things to do or restaurants to try wherever you happen to be. Although Google’s CEO Eric Schmidt recently said these autonomous search features were on the horizon, we’re pretty close to that point already with the location based apps like Facebook’s Places, Foursquare, and Shopkick. However Schmidt’s comments about the autonomous search does raise new privacy issues that everyone should be concerned about. Do people really want Google be know so much about us that Google tells us what to do, where to go, and what to eat?

What about Google’s Instant Search?

Google’s promoting of its new Instant Search includes a video of an old Bob Dylan song which may be cute, but the new search raises other new concerns about privacy and data that Google has about us. Now when we type in a letter in a Google search Instant Search immediately starts offering search results which in a way allows Google to complete our thoughts for us. But also Google can direct search results for paid advertisers if they have reason to want higher search rankings. In the meantime the Texas Attorney General recently announced that it was investigating Google’s search engine, and we may all learn whether Instant Search is driven by advertising or algorithms for the optimum results. However, most people are surprised to learn that Google saves all of our searches for 18 months (at in the US). What do you think about Google?
 

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