At the intersection of technology and privacy

Where (and when) does the legal sector intervene?

After reviewing the fascinating panel discussion hosted by The National Press Club last week, Attorney Report continues the important examination of the notion of privacy, individuals and privacy-eroding technology.

The basic question at hand is just how far new technologies will go in stripping away an individual’s privacy and right to contain personal information; and whether governments, the legal system, or the people affected will step in to keep these new-tech companies in check.

If you had a chance to watch the panel discussion in full –and it’s definitely worth the watch –then you probably concluded that governmental agencies, including federal agencies as well as Congress, will not be the likely candidates for stepping up to the challenge of protecting individual privacies.

That leaves the individuals themselves, and the legal sector.

A lot of commentary by experts and the well informed on these issues tend to suggest that people will only become actively organized to protect their data when some near catastrophe or majorly disruptive event involving their personal data occurs.

I disagree. In the United States, users of information technology can be divided into two groups: The minority group of well-informed users, and the majority group of uninformed, blissfully unaware users.

That is to say that the majority of IT users, in America, at least, have no real knowledge of how the technology they use daily actually works, or how it can be applied to work against their best interests.

If the majority of users gained such understanding, we’d probably see a strong, concerted push-back upon the accelerated erosion of their digital privacy, and against the companies spear-heading that erosion.

In case you think that’s an over-reaching prediction, consider the following:

Ars Technica, the online technology publication, reports that Internet Service Provider companies (ISPs) will now begin “throttling” their customers on a regular basis. If you’re caught visiting a piracy website, or uploading copyrighted files, your connection will be throttled, or significantly slowed down. You’ll receive email warnings from the ISP –supposedly, until you either stop such behavior or provide an accepted response.

Or, consider that Facebook users don’t actually own copyrights to their personal photos uploaded to the social networking site. According to an updated clause in their User Agreement, Facebook co-owns the rights to those photographs with you. And, their right to use your pictures however they want supersedes your personal copyrights.

What happens when more users of social networks endure experiences like that of Abraham Riesman, a Twitter user whose profile and tweets were hash-tag referenced then posted to an article on a major news site about a convicted rapist with the same name?

Countless other conflicts exist, and more are headed down the pike. The fact that the Ars Technica report was filed under the imprint “Law and Disorder | Civilization & Discontents” doesn’t increase edification of the masses.

Nor does the Twitter story posted to BetaBeat | The Lowdown on High Tech. Even when Mr. Riesman tweeted about the dicey mix-up and received help from a follower and fellow journalist, the majority would not have benefited.

That’s because when the educated, informed information technology user communicates about such privacy infringements, their voices are heard only by those already in-the-know.

A centralized system for educating the masses on information technologies is sorely needed. I.e., it needs to be an integral part of the curriculum in public school systems nationwide.

Perhaps when that happens, new generations will have a solid understanding of ubiquitous technologies and use them with more care, or demand that their personal information be under their strict control.

And if governments turn a deaf ear, it will be up to the next generation of lawyers and jurists to take heed, stand with them and take (legal) action.



Legal challenges of the next generation

Huge scope of new technology challenges for new attorneys

Current and future law school students who go on to become attorneys will face a large scope of unprecedented legal challenges stemming from a wide array of newly developed –and yet to be developed- technologies.

Socially accepted technology that courses through the Internet providing connectivity and information to users worldwide like e-mail, social networks and search engines are constantly evolving. These Internet technologies iterate with rapid-fire speed and often create disruptions in their mass-appeal among users.

However, Internet companies like Yahoo, Facebook and Google won’t be the only technology targets of social and legal scrutiny in the years to come.

A recent panel discussion presented by the National Press Club at the Law School of Catholic University of America spoke on the issues surrounding newer technologies being developed in the fields of electronic surveillance and personal tracking.

Legal experts on the panel centered their discussion around the framework of the Fourth Amendment’s prohibition of illegal search and seizure by government forces.

Noting that the current legal doctrine on what constitutes a protected “search” revolves around the idea of reasonably expected privacy, the panelists dove in to a fascinating exploration of present and future conflicts between individuals, governments and companies and their use of GPS and facial recognition technologies.

If you want to know what governments and companies are doing with surveillance and tracking technologies now, and what applications they will likely soon have at their disposal, then watch the full presentation.

A few of the most interesting topics are highlighted below.

  • Constitutional protections for individual privacy are virtually non-existent. Only the 4th Amendment takes a stab at defining a citizen’s personal space and property rights.
  • These limited constitutional rights are applied exclusively between individuals and governments – Not between individuals and other private parties or businesses.
  • “Intrusion upon Privacy” is not only a novel concept, it is a very fickle one. In the U.S. particularly, the notion of individual privacy is fast eroding in the public and consumer arenas.
  • Both federal agencies and most members of Congress take an increasingly relaxed view of individual privacy, because…
  • Tracking and facial recognition technologies provide them with highly effective, desired results for minimal costs.
  • As smart phone use reaches critical mass, more companies will develop more advanced systems to track individual users.
  • Already, a few companies are pioneering the development of “Biometric Tracking” technology …
  • And governmental agencies are already using it. Biometric tracking is largely developed around Facial Recognition Software.
  • Facebook is one such pioneer and user of FRS and Biometric tracking.

The debate continues over how far these technologies will go, where and when they’ll be applied, the frequency and volume of their application, and whether a breaking point will be reached over their legality.

Election Day voting laws by state

Plus: What is Digital Estate Planning?

In civic honor of our nation’s Election Day, Attorney Report re-posts this valuable information from FindLaw on employee-protected rights by state for voting time off. Use the information wisely, but above all, get out and vote!

Digital Estate Planning for All Your Digital Assets

An emerging practice area has estate and will planning attorneys incorporating their clients’ digital assets for transfer to beneficiaries upon their demise.

What kinds of digital assets? Actually, there’s a growing list. Many have some form of digital asset that can be considered of value either by monetary measures or by virtue of their perpetuity. Consider the following list for starters:

  • Email account(s)
  • Social network account(s)
  • Website URLs/domains
  • Digital libraries
  • Internet profiles

For example, you may have an iTunes or Amazon account with a ‘digital library’ of content in it that you amassed over the years which includes paid-for assets like songs, movies, ebooks and other content.

But before you start thinking about passing these valuable libraries along to a beneficiary, know your licensing rights to that content first. Content sites like Amazon and Apple’s iTunes Store don’t actually transfer ownership of downloadable content to their paid subscribers in most cases.

Rather, they transfer a limited-use license to you in exchange for your payments. This is in contra-distinction to buying a DVD after which you own the material outright.

Content licensing is a multi-million dollar industry for sites like the Apple Store, and Amazon’s Prime. Users can spend a sizable sum to gain access to digital content over time, so wanting to pass that value along is not surprising.

Rumors of actor Bruce Willis taking objection to not being able to do so were rampant over the summer via weblines that read “Actor Bruce Willis May Sue Apple Over iTunes Library Rights.”

Creative legal minds in the field of estate planning have come up with a feasible solution: Create a Living Trust.

Not only might you be able to provide access to your digital assets like your music and movie collections, but you could also keep other assets in the family like your domain, Facebook account, e-mail and gravatar accounts.

If for no other reason, estate planning for the legal transfer and protection of your digital assets after you’re gone lessens the likelihood they’ll be hijacked, stolen or used for undesirable purposes.


Attorney Report: Now trending

SCOTUS in October: Walmart and a wrongful firing

October 12th ended the month’s session for oral arguments heard by the High Court. While much has been made over the affirmative action case heard in Fisher v. University of Texas, it seems once again that the legal media have over-hyped the case’s potential for any significant or far-reaching outcomes.

Abigail Fisher was denied admission to the University of Texas when she applied in 2008, and did not take the rejection lightly. Rather, the young white Texan obtained legal counsel through the law office of Wiley Rein, LLP and attorney Bert Rein in order to sue the University for race discrimination.

Ms. Fisher believes she was denied entrance because of the University’s diversity policy, a policy that she and her attorney contend is solely based on race, unwarranted and by extension, unfair.

The overriding question of the interests served and need for Affirmative Action in higher education may not be answered by the Court because Justice Kagan rescued herself, cutting The Nine down to eight. In this setting, the strong likelihood of a split 4 – 4 vote means no opinion will be rendered, and the matter will stand as the lower courts decided.

Walmart Wrongful Firing and a Wrong Decision

James Casias worked for Walmart in a Michigan store from 2004 until he was fired in 2009 for violating Walmart’s drug use policy after he tested positive for marijuana during a mandatory post-accident drug test.

Casias has sinus cancer and an inoperable brain tumor for which his doctor prescribed medical marijuana for pain management. When he filed suit against Walmart for wrongful firing and violation of the Michigan Medical Marijuana Act (MMMA,) he claimed he never used the drug at work, or before arriving to work.

The district court dismissed the case, and the Sixth Circuit Court of Appeals upheld the dismissal because the panel agreed with the lower court’s conclusion that the MMMA does not apply to private employers.

It is quite disappointing that the courts took the back doorway out of this one. As Americans become increasingly in favor of medical marijuana use and more states legalize it, public policies on medical marijuana will continue to overlap into the workplace, and conflicts will arise more often.

It’s hard to believe that the private sector will work out feasible solutions for these conflicts on its own. It also seems unlikely that government agencies will be of much help.

While the EEOC is preoccupied with helping convicts by limiting pre-employment screening by employers, it has little to no concern for protecting workers like James Casias whose last hopes for a quality life lie with medical marijuana use.

Perhaps the courts should take on this issue through more meaningful analysis now, rather than waiting until governments and employers have made a real mess of things.


Five most intriguing copyright cases: part II

Superman makes the final three.

The five most intriguing copyright cases concludes with the final three, and begins where we started –the entertainment industry.

In the longest comic book legal battle to date, DC Comics sued Fawcett Publications for infringing upon their Superman character with Fawcett’s Captain Marvel, better known as Shazam!

But the Shazam! comic book character is actually owned by DC Comics, now doing business as National Comics Publications and a subsidiary of Time Warner. DC had sent a “cease and desist” letter to Fawcett back in 1941 when it filed the lawsuit which claimed Fawcett’s Captain Marvel was a “rip-off” of DC’s Superman.

According to Wikipedia, the legal battle continued in both district and appeals courts until 1953, at which time Fawcett decided to settle with DC/National having previously won but minor victories in the contentious battle. However, the company later rebounded through a series of acquisitions, including the trademark for Captain Marvel under “Marvel Comics” in 1967.

But they have also licensed the Marvel Family of characters to National, who began featuring Captain Marvel as being succeeded by the newly created Shazam! –an amalgamation of Captain Marvel and his alter-ego, Billy Batson.

The two titans of the industry continue to duke it out in court on occasion, the filings of which undoubtedly stir much excitement by way of monetary gains for the law firms representing them.

At #4, software entertainment companies prove game titles are just as protectable as any other work when Electronic Arts (EA) sues Zynga for infringing upon its Sims City franchise.

According to EA, Zynga copied its game “Sims Social” with their social game title “The Ville,” released in June of 2011, a full 2 months before Sims Social was released.

Among copyright infringement, EA is also alleging corporate theft, insisting certain former employees and game developers now working at Zynga stole protected story/game concepts from them.

The Facebook social game developer decided to strike back, and has filed an interesting counterclaim against EA. In it, they allege that EA had directly demanded that Zynga force all former EA employees back to the company.

In Zynga’s view, this type of request is a violation of anti-Trust Laws. Zynga further states that EA executives attempted to work out a “no hire” agreement with them, wherein the companies would promise not to hire each other’s developers. Strong statements indeed, but it will be up to a judge to determine whether hiring collisions qualify under antitrust.

No list of infamous copyright cases would be complete without paying homage to the music industry, the notion of “sampling,” and the artist called Vanilla Ice.

Ice Ice Baby makes the cut at #5 for what many have called the most embarrassing copyright infringement case ever. The self-proclaimed “white rapper” used the melodic riffs from a 1981 release by rock legends Queen and David Bowie, who collaborated for the first time ever to make the song Under Pressure.

The 1990 Vanilla Ice single reached number one on Billboard and music charts worldwide. In a fatefully ironic twist, Vanilla Ice “thanked” everyone from MC Hammer and Public Enemy to Sir Mix-A-Lot on the single's liner as his “inspiration” for the song.

Unfortunately, he failed to thank, or even mention Queen, who promptly sued the artist for copyright infringement in the appropriation of their original melody.

Perhaps even more unfortunate is the lyric “check out the hook while my DJ revolves it…” which Vanilla raps in prelude to the sampled (read: stolen) melody in Ice Ice Baby.

The case settled out-of-court for an undisclosed sum. Queen re-released Under Pressure in 1992.

Five most intriguing copyright cases: Part I

Hint: #1 involves Mike Tyson’s face

In an ongoing pursuit of Intellectual Property law and knowledge base creation, this week’s post looks at some of the most intriguing copyright infringement cases to date.

Coming in at #1 is the case filed by tattoo artist Victor Whitmill against Warner Bros. and its Hangover II movie for copyright infringement of his infamous Mike Tyson face tattoo.

Filed in April 2011 in the Eastern District Court of Missouri, Whitmill and his attorney claimed the infringement lied in the fact that Whitmill retained copyright to the original artwork as evidenced by Mike Tyson’s signature on a binding release upon completion of the tattoo.

In it, the agreement stipulated that Mr. Whitmill retained all rights, and as such prohibited all uses except for Mike Tyson’s personal use. The movie duplicated the tat upon a leading character’s face, and produced legions of promotional materials that include close-up images of the actor and his Mike Tyson copy-tat-face artwork without Mr. Whitmill’s permission.

Judge Perry presided and on May 24th, two days before the film’s opening date, issued a ruling that at once denied Whitmill’s request to enjoin the movie’s open, but also noted the overall merits of his claim as sound and “winnable.” The parties have of course settled for an undisclosed amount.

#2: Obama Poster – The iconic poster image of then senator Obama filtered in caricature hues of red that Shepard Fairey made famous during the 2008 election turned out not to be his original creation.

Fairey used a picture taken by an Associated Press photographer to impose software filters upon, likely done in Photoshop, which led to a wonderfully strong image of now President Obama’s likeness.

When the AP sued for copyright infringement, Fairey publicly admitted he had used the photograph as his source and inspiration. Millions of posters, T-shirts and pins were sold, generating significant income for Fairey.

Despite public backlash and confusion, the outcomes against Fairey in both civil and criminal court proceedings got it right. While it’s perfectly fine and widely acceptable to stand upon the backs of others to produce say, academic works, it is not okay to do so when producing commercial works.

At best, the filters Fairey imposed to make the Obama image alter the original by 15 – 20 percent. At best. He fails the originality test, failed to list the photographer as co-creator, and to get the AP’s permission to do so in the first place. Mr. Fairey settled the civil case by paying the news company $1.6 million in damages.

He received two years probation from the criminal complaints. Next week’s post will wrap up with the final three most intriguing copyright cases.

Honoring the fallen of 9/11

Plus: Legal aftermath of a horrific event

On this day of remembrance and mourning over the horrific attack brought about by the events of 9/11, Attorney Report takes this solemn opportunity to commemorate the fallen victims of that fateful day.

Most of the fallen that day were people who shared a common goal that they exercised in the simplest of rituals: They woke up that morning, got dressed and went to work.

Others were travel-bound. But whether these victims were individuals engaged in domestic travel, or innocent visitors from another country, on the morning of 9/11, they were all Americans.

Compensating 9/11 Workers and Survivors

In the aftermath of 9/11, hundreds of rescue workers and bystanders subjected to the lethal blowout of noxious fumes and deadly debris 11 years ago are still suffering a varied array of health problems.

The law firm of Worby Groner Edelman & Napoli Bern first represented those affected and successfully litigated the creation of the September 11th Victim Compensation Fund (VCF) that helped bring relief to thousands through the city’s court settlement program with 10,000 Ground Zero workers.

Early in 2011, the VCF was broadened in scope when the Zadroga Act was signed into law. Officer Zadroga was the first related death that was previosly attributed to the hazardous chemicals, dust and debris that remained in the air well after 9/11.

The Act made it possible for more people living and working in and around the area who suffered physical injuries to get compensation from the Fund. In October of 2011, registration to the original VCF was reopened.

At this time, Groner Edelman & Napoli Bern declined representation of any future registrants due to prohibition of collecting legal fees for the same clients as set forth by the court.

However, other law firms have since stepped-in to fill the void. These include Motley Rice, Parker Waichman, Borri Law Offices, and several others. It is interesting to note that Groner Edelman & Napoli Bern is currently investigating whether the Aurora movie theater had adequate security in the aftermath of the James Holmes shooting massacre



Attorney report now trending

July was an important month for the law, the federal Department of Homeland Security and the flying public. To understand why, you’ll need some background on the DHS’ progeny, the Transportation Security Administration (TSA) and a legal claim filed against them by the Electronic Privacy Information Center (EPIC) regarding TSA’s implementation of whole body scanners in airports throughout the country.

In July of 2010, chief counsel for EPIC sued the TSA on behalf of air travelers and good government groups seeking to prohibit use of the whole body scanners that display three-dimensional nude images of individuals passing through them.

Epic asserted that the scanners violate the 4th Amendment, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the Administrative Procedures Act.

The relevant constitutional claim against the TSA was that the powerful, new advanced imaging technology captured so much personal and intimate detail of an individual’s anatomy, that it was overly intrusive and thus in violation of the 4th Amendment’s unreasonable searches prohibition.

The results of EPIC’s filing are as follows:

July 15, 2011 – Judges Ginsburg, Henderson, and Tatel of the District of Columbia Federal Appeals court ruled that the AIT scanners are constitutional. In their decision, they write that the Advanced Imaging Technology renders a “crude” image of an unclothed person.

However, the three-judge panel did find for the plaintiffs where they asserted that the TSA violated Administrative Procedures Act in failing to hold a 90-day public comment period before implementing the scanners as a primary security method, and ordered the TSA to comply with the Act.

Sept. 2011 – Members of Congress and their constituents, some 35,000 individuals, write and sign a petition to the Obama administration that reports on the decided failures of the TSA in whole, and asks that the Agency be abolished. The TSA has yet to satisfy the Court’s public comment period requirement –which, the Court stated, it should have done in 2007 when the TSA decided to roll out the scanning program in full.

Oct & Dec. 2011 – EPIC files motions with the D.C. Appeals Court asking it to enforce its ruling against the TSA, which required that the Agency hold a public comment period.

Jan. 2012 – The TSA hedges its objections to the public comment rulemaking requirement, because, as it states in its brief; it has already assured the Court that it is “working on” it, and has since reconfigured the body scanners in question such that “naked flesh” is not apparent.

March 2012 – Meanwhile, mounting public backlash to TSA policies and procedures heats up across the nation. Resentment of the flying public toward the Agency is searing.

From reports of travelers arriving to airports in bikinis, underwear, and in at least one instance, stark naked, to public forum and online discussions detailing demoralizing and dehumanizing experiences, it seems the public is no longer just concerned with TSA scanners.

“Enhanced Pat-downs” –the option given flyers in lieu of scanning, are increasingly coming under fire (see: TSA policy of forcing the elderly or anyone else to remove all clothing to expose medical devices is viewed as unnecessary, over-zealous, and flat-out ridiculous.

In addition, questions about the health risks associated with the advanced scanners are at issue.

Public accounts are found across the Internet, and one man, Jon Corbett, attempts to bring his case against the TSA, the Department of Homeland Security, and the Federal Govt. to the U.S. Supreme Court.

July 2012 – After a full year, the TSA has still refused to hold the necessary 90-day public comment period as required by law, and ordered by the court.

Lead counsel and executive director of EPIC Marc Rotenberg files a petition for a Writ of Mandamus to the District Court that pleads the Court to send a written order of enforcement to the TSA.

And the beat goes on...

An anecdotal case study in copyright law

Everyone is familiar with copyright infringement, and with the related and more specific term of plagiarism. But, knowing of a term and actually understanding it are two very different things. For instance, last month a professional and seasoned Public Relations specialist posted a rather alarming question to our networking group. He wanted to know if it was OK to take a full screen shot of a Wikipedia article for use on his blog.

He framed his question by saying that he knew it was fine to reuse and republish images from Wikipedia, but what about the written content? Here’s the answer he received: No. It’s not OK to republish a Wikipedia article, or any article for that matter, in any form, including a screenshot, without permission as doing so violates copyright laws.

It seems his misunderstanding in this case was grounded in the notion that if someone creates something for free and makes it widely and freely available, then they forgo all claims of copyright to the material. Nothing could be further from reality. If a creator chooses to forgo compensation for a work, does that make him or her any less the creator? Because that’s who holds natural copyright under the law–the creator of the work.

If a seven-year-old draws a cartoonish character from the figments of her imagination, she is the immediate copyright owner of that drawing, and as such, has very distinct rights under U.S. copyright laws.If she sells that drawing, and in so doing gives up her claim to copyright in exchange for the compensation, then the buyer becomes the copyright holder. If she does not, she retains copyright to it. If she decides to hang the drawing up in her school’s lobby, or posts it to a Flicker account on the Internet, she’s still the copyright holder and has protected rights under the law; one of which is to decide if and how it can or cannot be used by others.

Copyright, Public Interest and Political Discourse

Now let’s say our hypothetical artist is Suri Cruise, daughter to iconic actor Tom Cruise and actress Katie Holmes. Suppose that the drawing depicts cartoonish characters that she has captioned “Church of Scientology Meeting.” In this instance, while she is still the copyright holder, it will be much harder for her to control if and how the work is republished.

Why? Because the drawing will be of massive public interest, since everyone is familiar with her parents and with the highly scrutinized Church of Scientology. If a journalist publishes the drawing as part of an article on the Church, and perhaps, how Suri perceives the inner-workings of Scientology, a judge will likely side with the publication in any claim of copyright infringement made by Suri and her parents.

That is because political discourse and the public’s interest generally trump an individual’s copyright claims in the eyes of the court. But there are degrees of tolerance here. Degrees that are governed by the Fair Use rule for just how much of a copyright holder’s work can be republished in the interest of the public.

If instead of a single drawing, our hypothetical entailed a story on the Church of Scientology, then Fair Use would generally prohibit publication of the entire story without the copyright holder’s permission. Rather, only a part or percentage of the story would be acceptable for publication without permission as part of the journalist’s larger article.

Citizens United will stand

Attorney Report now trending.

After a comprehensive effort put forth by the state of Montana, 20 other states and several campaign finance reform groups to have the SCOTUS overturn their highly criticized Citizens United decision, The Nine have reiterated their stance on corporate rights in the electoral process.

The justices struck down Montana’s election laws banning corporate backing of elections in that state, with the majority writing that:

“In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that `political speech does not lose First amendment protection simply because its source is a corporation.’ The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does.”

The decision to uphold CU as applicable and prevailing law in Montana effectively struck down that state’s attempts at campaign finance reform. Written on June 25th, the ruling was met with bitter resolve by good government and campaign reform groups like Common Cause, who vow to amend the Constitution in order to reverse the decision.

Oh boy.

Not to worry, though. It’s wholly logical to go digging around in the Constitution and adding amendments to it for the sole purpose of declaring that corporations are not people.

In truth, that type of language in the U.S. Constitution is exactly the sort of thing that could very well make the entire document a perpetual joke.

But, that’s a small price to pay in order for the senior justices to have their so-called legacies cemented in stone.