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This Week in Law 364 “Masks, Hats, & Hoodies” October 21, 2016

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Had a great time guesting on This Week in Law 364 with Denise Howell and Emory Roane. We talked about warrants for fingerprints (2 thumbs, 8 fingers down), facial recognition technology chilling effects, anti-surveillance, anti-drone camouflage fashion, the “Encryption Commission,” and much more.

We talked about the ethics and morality of smart cars and AI, which of course brought up the smart car scene in Hot Tub Time Machine 2:

On the note of dystopian surveillance fashion, Chanel showed in Paris a brilliant read-to-wear show for Spring 2017 with a futuristic surveillance, server farm theme. Check it out:

Finally, a small plug for our South By Southwest 2017 panel, Navigating the Youtube Safe Harbor with John Tehranian of One LLP and Kelly Klaus of Munger, Tolles and Olsen. See you in Austin, I hope.

Yes, Bad Publicity: FTC to Crack Down on Celebrity Endorsements August 7, 2016

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Great meeting at the FTC today. Stricter disclosure FTW! Love it : )

Both Bloomberg and Marie Claire broke stories last Friday that the FTC is going to pursue investigation of celebrity endorsements that aren’t clearly advertisements.

The announcement is the continuation of the FTC getting tougher with entertainment-based companies that do not clearly follow FTC Guidelines such as the proposed consent order in the Warner Bros. settlement with the FTC over “Middle Earth: Shadow of Mordor” game influencers with influencers such as YouTube star PewDiePie.

This blog previously reported the “Pony Stars” Disney’s $3 million consent judgment with the FTC over alleged violations of the Children’s Online Privacy Protection Act by collecting the data of thousands of children under age 13 without parental consent.

The FTC‘s interest in extending regulatory probes into the music, gaming and children’s entertainment industries is the writing on the wall that players in those industries need to rethink the old Hollywood adage “There’s no such thing as bad publicity.” If the publicity is paid for, you better tell the public who paid and how much, or else face FTC scrutiny.

On a somewhat related note, more ideas about “How to Act as a Business in a World in Which User Feedback and Reviews Are Critical to Your Reputation and Business” can be found in the presentation that Bennett Kelly and I did for the 12th Annual Stanford 2015 E-Commerce Best Practices Conference presentation on June 8, 2015 with Laurence Wilson of Yelp, Ed Chansky of Greenberg Traurig and attorney Francine Ward.

Slides of the presentation below:

(Photo Credit: Ted Murphy under Creative Commons license via flickr) Shoutout to my old BlogWorld 2009 panelists on “Sponsored Conversations” Ted Murphy, Jeremiah Owyang, Jennifer Leggio and Wendy Piersall.

This Week in Law Episode 247: Mergers of Dystopia July 2, 2014

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The big media mergers just keep on coming. AT&T wants to acquire DirectTV, Comcast is ready to gobble up Time Warner, and Sprint is finalizing its merger with T-Mobile.

Antitrust Professor Spencer Waller, FCC watchdog Ryan Radia, and I discussed such mergers with Evan Brown on This Week in Law 247, “Mergers of Dystopia.” Here’s the video:

Dumb Starbucks in Los Feliz February 12, 2014

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A Dumb Starbucks opened in my neighborhood over the weekend.

The Guardian asked me to write an op-ed piece on it, so I did.

Dumb Starbucks was the perfect crime, but Starbucks was smart to play dumb.”

Dumb Starbucks at 9:30 a.m. on Sunday, February 9, 2014. Photo: Lisa Borodkin

Dumb Starbucks at 9:30 a.m. on Sunday, February 9, 2014. Photo: (c) Lisa Borodkin

A casual poll of my Los Feliz friends yielded a generally positive range of reactions. The stunt was funny, and timely. I had just attended a Digital LA panel on the future of Silicon Beach and Hollywood. In a world where there is a demonstrated consumer demand to skip through televison commercials (see Fox Broad. Co. v. Dish Network L.L.C., 2014 U.S. App. LEXIS 1657, 2014 WL 260572 (9th Cir. Cal. Jan. 24, 2014), a/k/a the “Dish Hopper” case), what is the future of the television commercial? I hope this is it.

I did find a funny typo in LEXIS misspelling Illinois’ anti-dilution statute as “antidelusion.” If only states could eliminate delusions so easily.

The only thing diluted by Dumb Starbucks was the coffee.

The only thing diluted by Dumb Starbucks was the coffee.

Anyway, the whole thing was a lot of fun, and I look forward to more terrible advice from Nathan and doomed retail establishments next to my dry cleaner.

Nathan Fielder says he’s going to open a Dumb Starbucks in Brooklyn next week. Let’s just hope it’s in Williamsburg.

This Week in Law Episode 243: OKScraping, Mugshot sites, and Big Content Watches You February 7, 2014

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We had a lot of fun recording Episode 243 of This Week in Law webcast with Denise Howell and Evan Brown. Among other stories in our rundown, I found the one about the lonesome computer programmer who “hacked” OKcupid.com to find his girlfriend particularly charming. No, I don’t think he violated the Computer Fraud and Abuse Act, but it’s fun to think about.

It’s also fun to think about the future of Bitcoin, which we also discussed. The two economists who appeared as the guests on This Week in Law 244 (Stan Liebowitz, James Miller) opined that Bitcoin is essentially a shell game until the regulators catch up with it.

But with insider traders like Mathew Martoma sucking value out of the regulated markets $245 million at a time, is it irrational to put one’s trust in those developing the Bitcoin protocol? There is no inherent connection to illegal activity. Transactions would be totally traceable in metadata, unlike with cash, as long as the transactions stay within the US.

Seems more like the bad risks driving out the good, if you view the financial markets as risk pools. We now have other options. I’d accept Bitcoin for services. Would you?

Aaron Swartz, the Greatest Internet Law Hits of 2012, and Chilling Effects. April 29, 2013

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In episode 194 of This Week in Law, Denise Howell, Evan Brown, and newcomer (to me) Kevin Thompson and I had a really on-depth discussion of Aaron Swartz’s prosecution and what it means for the future of the Computer Fraud and Abuse Act.

One hidden gem that I suggest looking at is Evan Brown’s wrap-up of the most interesting internate law cases of last year. It’s a little buried in the show notes but you’ll find it in the bookmark called “PDF Link”.

I noted a disturbing chilling effect on Evan Brown’s comments on TWiL from last Friday in episode 208, “The Devil Wears Prenda.”

It’s very weird to speak openly about the fact that one is not speaking openly, and especially coming from a technology law commentator. Look for a more robust blog post on that score in the near future.

Facebook’s IPO, “Privacy Correctness” and Charlie’s Writing September 27, 2012

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Charlie Cheever is stepping away from his day-to-day role at Quora.

Quora is and always will be a great product. It’s not easy to do a real-time, community-edited, advertising-free collection of the best sources on the Internet for questions.

One of the things I particularly like is Charlie’s style of writing. Quora has one of the most readable “About” pages on the web. I always attributed this to Charlie, because the word “great” showed up a lot in his answers.

I hope Charlie continues to contribute prolifically to Quora, and I look forward to whatever he decides to do next.

Also, here I am discussing Facebook on the day of its IPO  with Kashmir Hill, Denise Howell, and Evan Brown on This Week of Law 162. “Privacy correctness” is an interesting idea. I’m generally impressed at how far we’ve come in at least considering the issue since the original Facebook privacy controversy in the Spring of 2010.

G-Male, Fake Tony LaRussa and $3M of Pony Stars: Slides from Online Privacy 101 October 20, 2011

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At the annual California State Bar Meeting on September 17, 2011, I had the honor of presenting a CLE panel on “Online Privacy 101: Who’s Watching You?” with Ian Ballon (who wrote the treatise on Internet Law), and the co-chairs of the state bar Business Section’s Cyberlaw Committee, Robert Hawn and Tony Vittal.

My section of the presentation covered “Social Networks.” To illustrate the good and bad of the overshared generation, I led off with “G-Male,” a parody of what a virtual boyfriend constructed from all the information Google has collected about you might be like:

My part of the presentation covered some basic legal concepts that will only grow in significance as social networks continue to infuse every aspect of our lives, from our most private messages to the daily news headlines. These topics are:

1. Misappropriation of Name and Likeness
Rights to control the use of one’s name and likeness become increasingly important as countless online community startups try to construct business models based on building social networks and monetizing against them. I discussed the 2007 case of Susan Chang v. Virgin Mobile USA, from the Northern District Texas (documents available at Justia.com). The Chang case is a good illustration of the difference between intellectual property rights (here, copyright that was waived through opting in to Creative Commons) and rights of publicity (here, the identifiable image of a little girl that was the subject of the picture used for Virgin Mobile advertisements without permission).

2. Impersonation Two fundamental schools of thought about Internet culture inevitably clash regarding impersonation. One school of thought holds that anonymity is sacred on the Internet, and that users should be able to construct a coherent (or even ephemeral) online identity. There are valid use cases for this, such as for victims of abuse or members of alternative communities that might otherwise be harassed. The other school of thought holds that online life is an extension of real life, and that it is important to verify each user’s identity to hold users accountable for their online actions.
I discussed Tony LaRussa’s case against Twitter (Good luck to you in the World Series, Tony) and the California Legislature’s new addition to the California Penal Code for malicious impersonation online, Penal Code Section 528.5.

3. Social Gaming and the Children’s Online Privacy Protection Act (COPPA)

It’s really, really important to know the laws about collecting user’s private information, especially in the case of children. As demonstrated by Playdom and Howard Mark’s May 2011 $3 million dollar settlement with the FTC. That’s a lot of Pony Stars.

4. Cyberbullying
Unfortunately, you can tell a lot about what people in a society are doing by looking at what they have outlawed. In July 2011, California amended Education Code 32261(a) to specify that acts of bullying through social networks qualify as bullying and can be disciplined in the schools. Which is a good opportunity to remind you that October is Bullying Prevention Month.

5. Computer Fraud and Abuse Act (CFAA)
This is such a broad law that it has recently been used in a variety of unexpected ways. I discussed the case of Pulte Homes v. Laborers’ International Union, in which the 6th Circuit upheld the employer’s claim that a union’s campaign to bombard and disable the employer’s email and telephone servers was an actionable violation of the Computer Fraud and Abuse Act.

6. Data Scraping and the Future of Online Reputation

There is an explosion of new data scraping sites vying to collect all your online information and push it to the top of search results for your name. I tested a few of them before the presentation to see how accommodating they were with requests to remove data. This promises to be a cutting-edge area for legal development, as the first two audience questions were about online reputation repair companies such as Reputation Defender and what, if anything, can be done about negative reviews on ratings sites.

Slides of the presentation below:

This Week in Law, Copyright School and Commercial Privacy Bill of Rights Act May 14, 2011

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It is always great to talk to Denise Howell and Evan Brown on This Week in Law. I had the pleasure of being a guest on Episodes 107 (April 15, 2011) and 87 (November 19, 2010) on this video podcast, which I consider essential listening for keeping up with technology law trends. Here are the replays:

We talk a lot about changing norms in copyright and Internet use. Here, we had a very spirited discussion of Youtube’s new “Copyright School.” Also, the Internet rights discussion has now entered the lawmaking process with the Kerry-McCain draft Commercial Privacy Bill of Rights Act currently circulating on Capital Hill.

Social Network Users’ Bill of Rights: You Decide March 10, 2011

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Friday, March 11, 2011 at 3:30 at the Hyatt in Austin, Christina Gagnier, Jack Lerner, and I are doing a panel (moderated by Alex Howard) at SXSWi about user rights. Panel information: http://schedule.sxsw.com/events/…

I had previously asked on Quora What rights should users of a social networking site have? Why? It was for this panel. I have asked for a link to the live stream of the panel where anyone can give feedback. The "mechanism" I refer to below is at a website http://snubillofrights.com/.

The panel organizer asked for a few paragraphs about the perspective each panelist would bring to the panel. Here is what I wrote:

"My perspective is that it is the responsibility of users to bootstrap and start up their own mechanism for feedback to social sites as good social networking citizens. Much de facto policy is now made by the free market. I see a need for users to organize and speak somehow as a quantifiable a group to give feedback to Facebook, Google and other well-intentioned social networking sites when the sites do things on erroneous premises of what users want.

There is no good way currently of collecting hard, empirical,
quantitative data about the preferences of a large number of social
network users. There is a need to have user input into the formation of social norms, because courts interpreting values such as "expectations of privacy" often look to social network sites policies and practices.

In May and June 2010, Jack Lerner and I discussed our concern that Facebook was modifying privacy policies in increments and making it technically difficult from a User Interface perspective for a user to revert default privacy settings they didn't agree with. We wrote a "Bill of Rights" around the same time as others from the Electronic Freedom Foundation, PC World, and ACLU had the same idea to publish Bills of Rights. Jon Pincus at the Computers, Freedom and Privacy conference in June 2010 had the idea to bring these Bills of Rights together into general principles.

The Bill of Rights is a starting point for norms. There are many
specific fine tunings and concrete applications of the norms. But this focuses on trying to achieve consensus about what users are entitled to expect and want, in the absence of website drafted policies and private Terms of Service Agreements."

By the way, I think Quora does an excellent job with these rights and norms. Most importantly they have tinkered with privacy settings and policies very little (if at all) from the policies set forth from the beginning.

Everyone's thoughts (and votes on http://snubillofrights.com/) are of course appreciated.

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