Law Enforcement and the Social Media Stakeout

Law enforcement techniques that were previously used by only federal agencies are becoming more readily accessible to law enforcement at the local level.

Police sitting in a car, with a cup of coffee in hand, waiting for something to "go down" at the building across the street is a scene we have all watched countless times in movies over the years.  While possibly not as dramatic for cinematic purposes, today police are able participate in big data stakeouts from their own desks.  At a meeting last month for the International Chiefs of Police (IACP), a cloud based service was unveiled that will allow local law enforcement to monitor social networks for evidence and clues of crimes committed in the brick and mortar world.

A piece in ArsTechnica noted that a poll of 1,200 law enforcement officers, as conducted by LexisNexis, found that four out of five officers are now using social media as part of their investigations.  New SaaS programs allow police to aggregate information culled from social media sources and then link to databases with public records to enable law enforcement to cross reference the information gathered.  The article also noted that one of the services providing this type of assistance will even "monitor the general mood of postings and pick up potential threats of violence."

While police have been using social media for some time as an aid to investigations, new technology and services are providing them with more elaborate tools to assist them with their online efforts.

Creating Fake Profile of Your Competitor on LinkedIn…Bad Idea

If you think making bad choices on social media is limited to high school students and politicians, you should take a look at AvePoint, Inc. and AvePoint Public Sector, Inc. v. Power Tools, Inc. d/b/a Axceler and Michael X. Burns.

In this Virginia, District Court case, the court refused to dismiss most counts in the complaint brought by AvePoint, Inc. against its software competitor, Axceler.  The complaint alleges that Axceler and its agents made false, defamatory, and deceptive claims and statements regarding Avepoint through both Twitter and LinkedIn, as well as through direct communications with customers and prospective customers.  Specifically, the allegations against Axceler state that the company attempted to confuse customers into falsely believing that (i) AvePoint is a Chinese company, not an American company, (ii)  AvePoint’s software is not made, developed or supported in the U.S., (iii) AvePoint’s software is maintained in India, (iv) that Axceler’s ControlPoint software is “Microsoft recommended” over AvePoint’s DocAve software, (v) AvePoint’s customers are “dumping out of 3 year deals in year 2 to buy Axceler’s ControlPoint, and (vi) Axceler uses its maintenance revenue to improve its customers’ existing products, whereas AvePoint uses its maintenance revenue to develop new products to which its customers have no access.

If all of the allegations are true, it appears the defendant went to remarkable lengths to execute its campaign against the plaintiff.  The complaint alleges that the defendant created an account on LinkedIn for a fictitious AvePoint representative named Jim Chung and, in connection with the account, used the plaintiff’s registered trademark.  Emphasizing the confusion caused by the defendant’s actions, the plaintiff noted Jim Chung’s LinkedIn connection list.  Further, taking full advantage of the opportunities afforded by social media, the defendant’s Regional Vice President of Sales for Western North America, while at the SharePoint conference in Las Vegas, tweeted in regard to the fictitious AvePoint representative, “Just ran into jim chung from avePoint Good guy.” To add further credibility to Jim Chung’s existence, another Axceler employee tweeted, “@MICHAELBURNS Free Jimmy! #Axceler.”

The District Court refused Axceler’s request to dismiss most of the nine counts set out in AvePoint’s complaint.  The counts the court refused to dismiss included defamation, breach of contract (defendant also allegedly acquired trial software from the plaintiff through deceptive means), trademark infringement, false association or false endorsement under the Lanham Act, False Advertisement under the Lanham Act and certain violations of Virginia law.

The court’s full opinion is available here. 

Facebook Considers Using Cursor Tracking Technology

The Wall Street Journal reports that Facebook is currently looking into technology that will enable the social network to track the location of a user’s cursor on their screen or interface.

The Journal noted that Facebook would not be the first company to engage in this type of behavioral tracking as Shutterstock, a digital image marketplace, has already done so.  The article quotes Shutterstock CEO, Jon Oringer, as saying, “Today, we are looking at every move a user makes, in order to optimize the Shutterstock experience.”

The potential Facebook tracking technology could collect data on how long a user’s cursor hovers over a part of the website and whether user’s newsfeed is visible at a specific time on the user’s mobile phone.  Facebook is still in the process of testing the technology, but the Journal reports that the company should know whether it will be proceeding with the technology within months.

Ken Rudin, Facebook’s head of analytics, is working on increasing the volume of the company’s available data and storing it in a way that can be accessed more efficiently. He referred to the review of the new technology as a “never-ending phase” noting that it will not necessarily be rolled out.

With the knowledge that Facebook is now considering this technology and, if it uses it, will not be the first company to do so, another layer of behavioral tracking can be added to the myriad ways data can be collected and used on social media platforms.

Potential Landlord Liability in Facebook Stalking Case

A recent ruling by an Ohio appellate court indicates that the landlord of an apartment complex could have liability in a negligence action brought in connection with a Facebook stalking incident.

The facts of this case, as outlined by the Court of Appeals Twelfth Appellate District’s opinion, are particularly disturbing.  The case involves a single mother, Lindsay P., who resided with her young daughter in an Ohio apartment complex.  The mother complained to the management company, Towne Properties Asset Management Co., Ltd., about excessive noise, including fighting and loud music, which emanated from the apartment below.  The apartment below was occupied by both the resident named on the lease as well as her live in boyfriend who was not a party to the lease and whose presence was not contemplated by the lease terms.  The dispute eventually led to the downstairs neighbors’ boyfriend banging on Lindsay P.’s door and engaging in other intimidating behavior.  The intimidating behavior included the neighbor’s boyfriend eventually contacting Lindsay P. through her Facebook account.  He “began the exchange by stating that he knew the two had differences, that he had seen Lindsay upset and crying, and that he knew things were not ‘easy for a single mom.”  He proceeded to make apparently sexual overtures to Lindsay P. and even attached a link to a pornographic website showing a man and woman having sexual relations and who the court said “looked similar” to both Lindsay P. and her neighbor’s boyfriend.  After the matter continued to escalate in this manner and Lindsay P.’s concern and fear continued to grow, she allegedly informed the management company that she would like to leave her current residence and look for another place to live.  The management company told her that “was not an option,” but that instead she could move to a different apartment managed by the company a few blocks away.  While not an ideal alternative, as termination of the lease appeared to be rejected by the management company, Lindsay P. agreed to the move even though it was in a first floor apartment that she expressed concern over “because of safety and accessibility reasons.”  Soon after moving into the new apartment, the neighbor’s boyfriend broke into Lindsay P.’s apartment and proceeded to rape her with her young daughter in a nearby room overhearing the attack.

The record of the case indicates that the management company had been provided with a copy of the contents of the parties Facebook exchange and informed Lindsay P. to contact the local police, which she did.  “It is undisputed that the police did not pursue charges against Haynes (the neighbor’s boyfriend) because of the Facebook exchange, nor did they investigate the matter.” There was some dispute as to whether Lindsay P. had expressly requested that her lease be broken and the court reasoned that such lack of clarity was an issue of credibility that “must be determined by the trier of fact.”  Moreover, while the landlord’s “counsel suggested at oral arguments that the record did not contain evidence that Towne Properties let tenants out of their leases…’the record, however, does appear to contain such testimony.”

In the Lindsay P. v.Towne Properties Asset Management Co., Ltd. opinion the court  states that “it is cognizant that the criminal acts of third parties are very difficult to predict and that a landlord does not generally have a duty to protect its tenants from the criminal acts of third parties.  However, there are issues of fact regarding whether Towne Properties should have reasonably foreseen Haynes’s criminal activity.”

Haynes was apprehended by the police, was tried and convicted of rape and aggravated burglary and was sentenced to nine years in prison.

Failure to Follow DMCA Safe Harbor Requirements Leads to Stormy Seas

Recent cases suggest that Internet Service Providers or “ISPs” need to understand, and act upon, the statutory requirements associated with the safe harbor provisions of the Digital Millennium Copyright Act(“DMCA”).  Recall that the DMCA’s safe harbor provisions protect service providers from copyright liability related to user generated content that might infringe the rights of a third party copyright holder.

In order to qualify for safe harbor protection, the service provider must first adhere to certain requirements including the following:

            (i)         be a “service provider” as that term is defined in the DMCA;

            (ii)        adopt and implement a repeat infringer policy; and

(iii)       not interfere with technical measures copyright owners use to protect their copyrighted works.

Once it is determined that the ISP meets the necessary qualifications for safe harbor protection, the next part of the analysis includes whether the ISP had

(i)         actual knowledge of the infringement at issue (referred to as the “red flag” test);

(ii)        whether the ISP received any direct financial benefit as a result of the infringement; and 

(iii)       whether the ISP acted quickly to disable the infringing material.

In a recent Southern District of New York case, Capitol Records v. Vimeo, the court refused to recognize that, as a matter of law, all content that was the subject of claims brought by Capitol Records and EMI Blackwood Music against Vimeo, a video upload site, fell under the safeguards provided by the DMCA’s safe harbor.  While the court did find that much of the content did fall under the act’s protection, the court also found that a sizeable portion of the content required a fact finder’s assessment in order to properly determine if the statutory requirements were properly followed.

In Vimeo, certain materials had been uploaded by employees of the site itself, which raised the issue of whether the content was user directed or uploaded as a result of the site’s own employees.  In fact, labels identifying the content as having been uploaded by “STAFF” were included on the site to identify the related content.  In addition, raising the “red flag” rule, Vimeo employees had placed certain content in specific sections or categories of the site including on employee only channels and, moreover, employees had commented on some of the content as well.  As a result, the court found that the content associated with these actions presented triable issues of fact.

It should also be noted that this case follows on the heels of a recent U.S. District Court for the Southern District of Florida case, Disney Enterprises, Inc. v. Hotfile Corp. that found no safe harbor protection where a site failed to take action against repeat infringers after receiving proper takedown notices by rights holders.

Florida Legislator Looks to Restrict Employer Access to Employee Social Media Accounts

Florida, a state that is generally considered to be friendly to employers will be taking steps to protect employee and prospective employee privacy if a South Florida State Senator has his way.

Florida State Senator, Jeff Clemens of Lake Worth, wants Florida to join the growing list of states that restrict employer access to employee or prospective employee social media accounts.  The proposed bill defines a social media account as “an interactive account or profile that an individual establishes and uses through an electronic application, service, or platform used to generate or store content, including, but not limited to, videos, still photographs, blogs, video blogs, instant messages, audio recordings, or e-mail that is not available to the general public.”  The bill would restrict employers from doing the following:

(a) Requesting or requiring that an employee or prospective employee disclose a username, password, or other means of access to a social media account through an electronic communications device;

(b) Requesting or requiring an employee or prospective employee take action that allows the employer to gain access to the employee’s or prospective employee’s social media account if the account’s contents are not available to the general public;

(c)  Retaliating against an employee for refusing to give the employer access to the social media account; and

(d)  Failing or refusing to hire a prospective employee as a result of a prospective employee’s refusal to allow the employer access to the prospective employee’s social media account.

Thirty-six states have already taken similar action with 11 already enacting statutes including California, Michigan, Maryland and Colorado. Some, including New Jersey governor, Chris Christie, have questioned the broad scope of such laws. Nevertheless, Governor Christie did recently sign such legislation into law, which takes effect December 1^st of this year.  See States Continue to Enact Privacy Laws Protecting Employees from Employers.

The proposed Florida bill would enable an employee or prospective employee to bring a civil action against the employer within two years after the violation and also provides for the seeking of injunctive relief.  If the Florida bill is passed in its current form it would take effect on October 1^st of next year.

Equifax, Transunion, Experian and FACEBOOK!!??

Might lenders start reviewing your social media activities to determine your creditworthiness?

Erika Eichelberger wrote a sobering piece in Mother Jones last month addressing that very issue.  Actually, Eichelberger points out that some lenders are already engaging in the practice and that it could only be a matter of time before mainstream lenders begin doing the same.

Eichelberger reports that lenders who use information found on social media sites argue “that they are able to serve borrowers that traditional banks deem risky because they are able to evaluate credit risk based on more subtle social media-based indicators.”  These indicators include the number of friends applicants have, how often they interact ad even the quality and quantity of one’s LinkedIn contacts “for clues to how quickly laid-off borrowers will be rehired.”

The practice which is currently being used primarily by lenders providing loans to low-income borrowers raises issues of both credibility and fairness.  Does the information available on social media sites really provide valuable information when assessing a potential borrower and is it being applied in a fair and non-discriminatory manner?  The two key laws applicable in this area are The Fair Credit Reporting Act (FCRA) and the Equal Credit Opportunity Act (ECOA).  The FCRA provides citizens with certain rights related to the use and disclosure of their personal information by credit reporting agencies.  The ECOA seeks to provide equal opportunity to customers of banks, credit card companies, loan and finance companies and others.  It prohibits discrimination against applicants based on race, color, religion, national origin, sex or marital status and age. Eichelberger notes that critics of the practice question whether the information provided is truly indicative of the likelihood of repayment on the part of a prospective borrower.  Quoting Ashkan Soltani, an independent expert on consumer privacy and behavioral economics, “For you and I to call each other friends in the real world, we’d have to hang out a lot’…’I might follow you on Facebook because you post funny cat pictures.”  In addition, Eichelberger writes that experts say these lenders may be “discriminating against applicants who essentially appear socially undesirable’…’But discrimination law does not yet cover people who are unpopular.”