Access Denied! Why You Should Care about Net Neutrality

This article was originally featured on the Truman National Security Project’s Doctrine Blog on April 26, 2017.

If you get frustrated when it takes longer than normal for a site to load or appreciate the freedom to visit the site of your choosing without impediment, you should be watching what happens with net neutrality.

But what is net neutrality? Often referred to as “Open Internet,” net neutrality is the underlying principle of the Internet that internet service providers (ISPs) provide open and consistent access to any application or content that rides over their networks. This prevents ISPs that provide broadband and telecom service, like AT&T and Comcast, from also providing preferential treatment to companies willing and able to pay more for faster speeds. After all, if ISPs aren’t required to maintain consistent connectivity, consumers will likely limit their searches and consumption to sites that load easily.

Net neutrality additionally prevents the ISPs from blocking content of their choosing, which becomes important in that such blocking can put limits on free speech and press. The Internet is often a platform for marginalized voices. Small businesses, people of color, citizens of oppressive regimes, and activists can use the Internet to amplify their otherwise discreet and often silenced messages. Without net neutrality, ISPs could block unpopular speech and prevent dissident voices from speaking freely online. Without net neutrality, we may not know of many of the injustices perpetuated around the world or in our own back yard! On another note, less politically harmful but equally as disruptive, you may not be able to find the business or product you’re looking for or watch the movie of your choosing without an additional fee. Equally alarming, limited access to information and content can also impede competition, therefore potentially manipulating the market.

No matter your economic status, political beliefs, racial identity, sexual orientation, or ISP, you deserve to have the same access to any website you choose to visit. However, FCC Chairman Ajit Pai has a draft plan, which he has not presented publicly, that will reportedly severely weaken net neutrality rules for all. Instead of clear rules that require ISPs to treat all data the same, Pai is proposing a voluntary system where providers promise in writing they will not block web pages or slow down traffic. Theoretically, under his plan, as long as ISPs commit to protecting net neutrality in their terms of service, the FCC can eliminate its rules defaulting to the Federal Trade Commission (FTC) to punish ISPs that do not comply with their net neutrality promises.

This may sound “ok” on the surface, but ISPs would only be bound by net neutrality requirements to the extent they promise to follow them — no standardization or mandatory level of protection. This type of voluntary system leaves too much room for “creativity” on how to make money by manipulating internet traffic or how to silence unwelcomed perspectives. Importantly, this construct would require changes to FTC Act, leaves unclear how consumers would know whether content is being blocked in order to file a claim, and requires claims be tied to consumer harm. Additionally, there isn’t enough competition among telecom and broadband providers to demand compliance. Not to mention, there is little to stop ISPs from removing net neutrality clauses from their terms of service in the future.

Essentially, the greatest attribute of the Internet is its freedom, and the ability to search without restriction or limit is fundamental to such freedom. Rolling back current consumer and competition protections stands in direct opposition to maintaining a free and open internet.

In 2014, citizens and businesses successfully cried out for protection from manipulation of service speeds and paid prioritization. Then FCC Chairman Wheeler released rules, “the Open Internet Order,” one year later. Earlier this month, current FCC Chairman Pai discussed plans for net neutrality with the Internet Association — a lobbying group representing Facebook, Google, Twitter, and other large tech companies — and the organization took to the media to underscore their support for these rules. Internet Association members have made clear they are prepared to fight against any dilution of net neutrality rules. Hopefully, this strong show of support for strong net neutrality will cause Chairman Pai to reimagine his plan.

On the heels of President Trump signing the Congressional resolution to overturn Internet privacy rules — the first sign of an agenda to roll back FCC protections implemented in recent years — Pai’s inclination toward a voluntary framework is a call to vigilance, if not a call to action, for those invested in and enjoying net neutrality.

This week, members of Congress have answered the call by requesting Pai to reveal his net neutrality plans. Democracy and a stable economy demand access to information. Every citizen and business who values the freedom to search the Internet without restrictions and receive all content consistently should lend their voice to preserving net neutrality rules.

View story at Medium.com

Conversational Commerce: Are You Ready?

Guest post by Jason Miller.

Texting Dominos a pizza emoji and a deliveryman showing up at you door “30 minutes” later with a pizza exemplifies the integration of Business to Consumer (B2C) transactions. Well, the same transactional principles may forever change the B2C relationship. Imagine if instead of sending a text and receiving a pizza, you could text your local grocery store your shopping list or text Amazon about a product you want—and have it delivered the same day.

These possibilities represent the next evolution of the B2C relationship called, “conversational commerce,” which has already taken Asia by storm. It allows users to order on-demand services and products through text messages or other messaging services, established a new commercial platform that may change the game yet again. TechCrunch reported that: China’s WeChat generates over $1B in revenue from its 440 million users, which allows them to use text messages to their pay bills and order products, while Japan’s LinePay takes a similar approach.

The principle is most mobile-phone users spend most of their time texting; why should they have to switch a different app, search for the product, enter their payment information, and then place their order. But soon consumers will be able too simply send a text to the company they wish to make a purchase from. Expanding texting’s potential to making payments, buying products, etc. may alleviate these cumbersome tasks altogether.

While at first-glance commercial communication may seem a bit novel, the United States has certainly taking notice of its impact in Asia. American tech-giants, like Facebook and Google, are jumping on the bandwagon. TechCrunch noted that Facebook, for example, is in the process of implementing these capabilities into their “Messenger App,” allowing users to order food and even speak with businesses directly. Meanwhile, many start-ups have also developed to take their share of this expanding market. Such as Magic, a concierge-type delivery service that lets uses order almost any product for delivery through text, which oddly enough I started using the day I read about it.

Though the market is young in the States, its validity as a commercial platform is clear and a possibly lucrative one at that. If there’s money to be made, then I think its safe to presume that large companies will attempt to adapt their current systems to implement this developing commercial space within their business model (i.e., Facebook, etc.). Hopefully allowing me text a masseuse to and recreate my favorite scene from Boy Meets World; Griff was my hero.

Note from the Digital Counselor:

Entrepreneurs and small business owners should be on the look out for ways to integrate this into their business model. Early adoption could be a standout feature and create a niche that may enable rapid growth. However, rapid growth necessitates the ability to scale quickly, which can be hard for a small business with little capital. Although a great tool, businesses looking to implement must look at potential impacts to their business model and ultimately their bottom line.

About the Author:

Jason Miller is law student at American University Washington College of Law. Jason is originally from Rockville, MD, and studied communications at University of Maryland. While in undgrad, Jason & his friends founded a globally followed music blog, with about 100k unique visitors per month. After graduating, Jason worked at the U.S. Senate for two years before going to law school.

 

Disclaimer: The views expressed here are solely those of the author in his private capacity and do not in any way represent the views of TheDigitalCounselor.com, any other poster/blogger of this blog or any entity affiliated with blog posters. Any comments by TheDigitalCounselor.com do not reflect the views or ideas of any organization or individual that may or may not be affiliated or associated. 

Accepting Guest Blog Posts

I have accepted a position that will not allow me to write in 2016. However, I want to continue to provide information on cyber, intellectual property (IP), social media, security, privacy, and technology law and policy to you all.  So…. I am accepting  submissions from guest bloggers!

Please send me your best cyber, IP and tech law and policy posts. Many of this blog’s followers are entrepreneurs, technophiles, tech novices, bloggers, social media user and those intrigued by tech, so please cater your posts to that audience. Please send posts to thedigitalcounselor@gmail.com. I will notify you if your post is selected.

Thank you for your submission, in advance, and more importantly, THANK YOU FOR READING!

I hope the readers find previous posts and any information others are able to provide in my absence helpful! And I look forward to returning in 2017!!

New gTLDs Causing Trouble for Twitter

Screen Shot 2015-07-15 at 10.07.30 AMYesterday, a website that looked exactly like Bloomberg posted “news” that there was a $31 billion buyout offer for Twitter. Ummm not true! The website, called http://www.bloomberg.market, featuring a new gTLD, was fake. And so was the report. The fake website was a near-identical replica of Bloomberg’s site, and even used Bloomberg reporter Stephen Morris’s byline. OpenOutcrier, a Twitter account that bills itself as a destination for “Real-time stock & option trading headlines, breaking news, rumors and strategy” was the first to post about the report, although Bloomberg employees were quick to point out it was fake.

Most discussions about new gTLDs causing problems for brand owners is preventative such as with the .SUCKS and .PORN domains. This incident is a good example of a new gTLD causing the damage brand owners are trying to prevent in those other cases. As a brand owner you should make sure to not only use these new gTLDs as a tool for branding but remain aware of the release of new gTLDs to proactively register relevant domains and/or monitor for infringement like this. There are a number of free monitoring tools like Google Alerts or Talkwalker that you can use to monitor use of your brand name.  And you can see which new gTLDs have launched and when so you can remain up to date on gTLDs that you should register from a branding perspective and/or from a brand protection perspective.

As a result of this false story, Twitter shares shot up, only to fall back down when Twitter corrected . It’s not clear who was behind the faux story. With all that’s going on with Twitter, including the CEO being replaced by co-founder Jack Dorsey earlier this month, this incident was believable.  This could have caused more damage to company finances, reputation, and consumer trust. Don’t let your brand be next! Fraudsters are very savvy as you can see.

Should You Trademark Your Website?

It is extremely important for companies to protect their intellectual property. Developing a comprehensive intellectual property plan is essential to protecting your investment and protecting your consumers from confusion.  Trademarking your brand names, slogans and company name as well as copyrighting blog content, original imagery, and other original works of authorship are commonly know areas of focus for companies and entrepreneurs.  You want to be in control of your brand, your content and your creations.

Now, according to one federal court, companies can use trademark law to protect the unique look and feel of their websites from imitators. As a result of this ruling, companies should consider registering their websites as trademarks with the U.S. Patent and Trademark Office (the “USPTO”).

The U.S. District Court for the Northern District of California recently ruled in Ingrid & Isabel, Inc. v. Baby Be Mine, LLC, No. 13-01806 (N.D. Cal. Oct. 1, 2014) that the look and feel of a website used to market and sell products and services can constitute protectable trade dress under Section 43 of the Lanham Act. See 15 U.S.C. § 1125(a) (2012). Trade dress, a derivative of trademark law, protects the total image of a business or product, including the arrangement of identifying features such as graphics, packaging, designs, shapes, colors, textures, and décor.

This is an important development for companies seeking to protect their brand online. Your website is an important part of your brand as a company. It is often a customer’s first impression and point of sale.  Previous case-law suggested that a website could constitute protectable trade dress only if the website itself was the product. See Conference Archives, Inc. v. Sound Images, Inc., No. 06-00076, 2010 WL 1626072 (W.D. Pa. Mar. 31, 2010) The Ingrid & Isabel case provides an opportunity to expand those protections. This decision is reminiscent of the USPTO allowing Apple, Inc. to register a trademark for the design and layout of its unique retail stores. Your website is in effect your online store. This is a great example of the law starting to catch up with the times. Companies seeking to take advantage of this protection must make sure their website is 1)distinctive or has acquired secondary meaning and is 2) nonfunctional.RegisteredTM

  1. The court noted that the “Supreme Court has held that ‘design, like color is not inherently distinctive’ [citing a case involving Wal-Mart.]  Given the conceptual similarity between ‘look and feel’ and ‘design,’ Wal-Mart suggests that Plaintiff must show that its website‘s ‘look and feel’ is distinctive through its secondary meaning.” This eludes to the fact that the design of a website is not “inherently” distinct. You want to secure these protections before someone seeks to copy your website. However, per previous case-law  “secondary meaning may be inferred from evidence of deliberate copying of the trade dress…” Therefore, if you can show that your competitor deliberately copied your website, that will help to support your claim for acquired distinctiveness.
  2. Functional elements cannot be protected as trade dress. However, according to the court in Ingrid & Isabel “the placement and arrangement of functional elements can produce a non-functional aesthetic whole.”

This is also an important decision from a cybersecurity perspective. Most consumers are lured into phishing and other fraud scams when malicious actors mimic the look and feel of a brand’s website. Armed with a similar site they can lure unsuspecting consumers to insert personally identifiable information and financial data into their fake site. This can result in identity theft and financial loss. This is another tool in a trademark owner or company’s arsenal to combat fraud and protect their customers.

If your website is distinct, talk to an attorney about protecting it. This is an important consideration and should be part of developing a comprehensive intellectual property plan.

Trade dress protection has existed for decades, but its usefulness for websites and other Internet-based applications has been limited. It will be interesting to see how courts continue to apply the law to websites, mobile apps, and other non-traditional mediums.

Note that the court didn’t determine the ultimate outcome of this case; that’s still in dispute. This ruling merely allowed Ingrid & Isabel’s claim on this point to proceed to trial.

Internet Updates March 2015

Three of the most popular social media platforms—Facebook, Twitter and Reddit—have recently amended their terms of use to state that they will remove digital images of nudes that have been posted without the subjects’ permission. “Twitter executives have said the company will lock the accounts of users who post content that violates their user policy,” Mashable reports. These policies are critical weapon in the war against revenge porn because they can be used to remove revenge porn photos before they have been widely disseminated.

The Digital Advertising Alliance (DAA) recently announced two new mechanisms that will allow consumers to manage ad preferences on their mobile devices. (Loeb & Loeb LLP summarized the new mechanisms in an Alert.) These new consumer opt-out tools, which are intended to complement the existing opt-out mechanisms that are part of the DAA’s self-regulatory program for online targeted advertising, complete the DAA’s self-regulatory program for the mobile environment and set the stage for the enforcement of the program, which is expected to begin this summer.

Twitter revamped its retweet feature on Monday, making it easier for users to plug other people’s tweets and add commentary of their own, according to Mashable.  This latest approach does not require copy-pasting instead you’re prompted to insert a remark before hitting the retweet button.

Twitter’s new harassment-reporting tool is making it easier for users to report threatening tweets to the police. Users who report threatening tweets now have the option of receiving an emailed report, summarizing the tweet, when it was sent and other information that may be relevant to law enforcement. It’s still up to individual users, however, to bring these reports to the attention of police and other officials. It’s not clear what, if any, impact this will have for police investigations. For more information read the rest of Mashable’s article.  This is part of Twitters overall initiative to protect users and address incidents quicker.

Advertising Services Is Not Use In Commerce

Your website for your new service has gone live! You are building momentum for you launch in a few weeks by advertising your services. You know you need to protect your intellectual property so you seek federal registration of your new trademark. Is that new website or other adverting materials sufficient to show “use in commerce” as required to secure a federal registration for use?

Seems like it could, right? Unfortunately, the answer is NO.

In Couture v. Playdom, Inc., the Federal Circuit held that the use of a mark on a website to offer services is not use in commerce sufficient to support an actual-use service mark application. As a result, the Court affirmed the Trademark Trial and Appeals Board’s (“TTAB”) cancellation of the mark.  The PTO granted the petition because, at the time of Playdom’s service mark registration, it had not rendered any services under the mark, but merely advertised those services on a website.

This case is a great example of the unnecessary risk in prematurely applying for an actual use mark, rather than an intent-to-use mark.

To apply for registration under Lanham Act § 1(a), a mark must be “used in commerce,” which requires – as to services – that, as of the filing date, the mark (1) is used or displayed in the sale or advertising of services and (2) the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services. 15 U.S.C. § 1127; Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350, 1357 (Fed. Cir. 2009).

The Federal Circuit, in this case, explained the fundamental proposition that “[w]ithout question, advertising or publicizing a service that the applicant intends to perform in the future will not support registration;” the advertising must instead “relate to an existing service which has already been offered to the public.” Id. at 1358 (internal quotation marks and citations omitted) (emphasis added).

So what does all of that mean? Advertising for a service you have not yet begun to offer to the public is not enough. To successfully register a service mark, services associated with the mark must have been provided prior to registration. Do not use advertising for a service set to launch in 3 weeks or a month. The mark is not in use in commerce as necessary to secure federal trademark registration. It may not be obvious when filing but if there is ever a challenge you could lose your protections as Couture did.

Any doubt about actual use should lead to the filing of an intent-to-use application; it’s not worth the risk of losing your mark. An intent-to-use application would have given Couture the benefit of the earlier filing date when the mark was actually used in commerce and issued as an actual use mark. See 15 U.S.C. § 1057(c).

Internet Law & Security Updates

So much is happening online that it can be hard to keep up. I have compiled some of the most recent events in Social Media, Internet law & Cybersecurity. Know how these changes affect your privacy and other rights. If you have any questions leave them in the comments!

Social Media

Comments on social media considered and Facebook “Likes” enjoy federal protection. On August 25, the National Labor Relations Board found in Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Sanzone, Case No. 34-CA-012915, and Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Spinella, Case No. 34-CA-012926, that an employer had violated federal labor law by terminating an employee who had “liked” a former co-worker’s negative comment about the employer posted on Facebook.  The Board also ruled that the employer violated the National Labor Relations Act (the “Act”) by firing another employee for posting an expletive-laced comment about the employer in response to the former co-worker’s comment, and it found that the employer’s “Internet/Blogging” policy banning “inappropriate discussions” regarding the company unlawfully chilled employees’ exercise of their right to engage in protected, concerted activity under the Act.

BYOD

Reimburse employees for wireless service. A recent California ruling that requires companies to reimburse employees for wireless serviceAlthough the case raised more questions than it answered about what level of reimbursement is required, it seems clear that companies will bear a larger portion of the cost of BYOD programs than they had previously borne.

Security 
According to the New York Times, when one adds the compromised records in Target, PF Chang’s, Neiman Marcus, Sally Beauty, Michaels, UPS and others, the number of affected customers amounts to more than one-third of the U.S. population.

Home Depot the latest victim of security breach. Krebs has reported that it appears that two large dumps of purloined credit card numbers have made an appearance on the black market and that those numbers may have originated at Home Depot locations. Krebs’ reporting is here. This latest incident raises yet another round of concerns about the malware known as “Backoff” and the potential widespread effect on retailers. Home Depot has been hit with a class action lawsuit stemming from a suspected data breach at the home improvement retailer 

Using your cellphone’s gps to stay ahead of fraudsters. In a new effort to use technology to foil credit-card fraud, a company called BillGuard is testing a system that would monitor the precise whereabouts of mobile devices to detect possible payment issues. The tech firm is tracking mobile-phone locations in an attempt to stay one step ahead of fraudsters. Because smartphones are almost always near their owners, the technology would register and flag those occasions when a phone is not near the owner’s credit card. The technology would only be used with the consumer’s consent.

Healthcare.gov Server Hacked.The Department of Health and Human Services disclosed on Sept. 4 that malware had been uploaded on the Obamacare test server back in July. HHS officials say the malware was designed to launch a distributed-denial-of-service attack against other websites when activated and not designed to exfiltrate personally identifiable information. No consumer data was exposed in the incident, officials say (see HealthCare.Gov Server Hacked).

Apple plans to add safeguards to help address security vulnerabilities exploited by celebrity-photo hackers. The proposed changes include alerting users – using both e-mails and push notifications to devices – every time someone:

  • Changes an account password;
  • Uses a new device to log into an account;
  • Restores an iCloud backup to a new device.

After receiving a related alert, the user can immediately change their account password, or file a report of a suspected security breach with Apple. The company has yet to detail how exactly it will respond to those reports.

Privacy

Magazines in Michigan cannot share your personal information. The Michigan’s Video Rental Privacy Act limits the ability of companies to disclose information regarding customers’ video rental activities. In a case filed by a consumer who alleged that a magazine company had improperly disclosed her personal information, along with information about the magazines to which she subscribed, the U.S. District Court for the Eastern District of Michigan recently held that the law does in fact apply to magazines. The court noted that the statute is directed to companies “engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings,” and that magazines constitute “other written materials.”

They’re Lying! How to Combat Online Defamation

Has anyone ever posted false information about you or your company online? I don’t mean things you would prefer not to be out there but​ completely false and potentially damaging information. If you have you know how overwhelming it can seem to get this information down because it can so quickly “go viral” and often is unattributable. Luckily, there are steps you can take to get this information down.

First Line of Defense: Terms of Service
Most online service providers (OSPs)​ have Terms of Service (ToS) or Terms of Use (ToU) that govern the use of their website. Usually those terms prohibit the posting of defamatory material and include the OSP’s right to remove such content.  Even websites that offer consumers places to “vent” and post complaints about companies and individuals, such as RipOffReport.com and Complaints.com,  usually require that users post only information that is truthful and accurate.  Unfortunately, there is not validation process to confirm accuracy prior to posting.

If you identify false and potentially defamatory information about you or your company online, your first step is to check the site’s terms of service. If this is a violation of their terms of service, contact the OSP where the content is posted and notify them of the violation of their terms of service.  Many of the sites we frequent and use to promote our businesses have forms or contact emails designated for this purpose. At the end of this post you will find resources for reporting defamation on a few of the most popular social media sites.

The Content is on its own Website
If you identify potentially defamatory content on a website created but the poster they are not likely to have terms of service that you can use to make a case for removal. However, contact information is required when someone registers a website so you can often obtain the relevant contact information through a WhoIs search on a registrar website, such as whois.domaintools.com. Armed with this information you can work with an attorney to draft a cease and desist letter that will hopefully result in the removal of the content. Site owners do have the option for private registration so if they have elected this service this option is not feasible. Additionally, you should reserve this course of action for sites stood up by the poster because hosts, ISPs, and other OSPs are protected from litigation under the Communications Decency Act.

Dealing with Mr. Anonymous
If you are unable to identify the poster or are unable to get assistance from the OSP you still have legal recourse to get the content removed. Legal proceedings can be commenced against anonymous “John Doe” Internet users.  Once an action is filed, a subpoena can be served on the host website to obtain the Internet Protocol (“IP”) address of the perpetrator, as well as other personally identifiable information (“PII”). You can also subpoena the ISP that assigned the IP address to discover the perpetrator’s identity.

Beware of SLAPP
SLAPP stands for Strategic Lawsuit Against Public Participation, which essentially is a lawsuit filed against a defendant in retaliation for speaking out on a public issue or controversy in, for example, a blog or social media. The goal is to burden them with legal fees until they abandon their criticism. Over half of the states in the United States and District of Columbia have enacted “anti-SLAPP” legislation to protect an individual’s right to free speech and prevent such lawsuits.  “Public issues” include those involving celebrities, public officials and the financial solvency of large companies.

The defendant can use SLAPP to get the suit dismissed. If a defendant is able to demonstrate that the SLAPP action was brought merely for harassment purposes, he or she may file a “SLAPPback” lawsuit against the plaintiff.

If the potentially defamatory statement is not of public interest about a public issue, there really is no SLAPP concern.  Of course, if the subject statement truly is defamatory and all of the elements of a defamation claim are present, there really is no SLAPP concern either way. Make sure the content you seek removal for is truly defamatory if you elect to pursue a lawsuit or other legal action. 

Have you ever been the victim of defamatory content online? How did you handle it? Do you have any tips to add?

Content Removal Resources:

 

​**”Defamation” is a catch-all term for any statement that hurts someone’s reputation. Written defamation is called “libel,” and spoken defamation is called “slander.” Defamation is a legal conclusion that can only be made by a judge. ​

 

Internet Updates June 2014

There is so much going on in the Internet space that I have compiled some of the most interesting happenings of June. They all link to more info. Please read, enjoy and let me know if you want me to expand on anything!

Are threats made on social media protected free speech, or potentially criminal actsThe U.S. Supreme Court has agreed to examine the constitutionality of a federal law making it a crime to transmit communications containing “any threat to injure the person of another.” In this case, the “threats” were in a series of Facebook postings.

Be careful what you post on Facebook, you might get a ticket for it… A woman in a Chicago suburb received a $50 ticket in the mail alleging that she had used a dog park without a permit. The ticket was based entirely on a Facebook posting that the woman had made, and the police immediately rescinded it, saying  that they do not monitor social media in search of potential lawbreakers.

It might be a crime to friend your boss if you live in Arkansas! Arkansas legislators are considering changing a 2013 law after Facebook informs them that the law may have inadvertently made it a crime for a boss and an employee to become Facebook friends.

Snapchat may have competition. According to the Los Angeles Times, Facebook prematurely released, then withdrew, a new mobile app called Slingshot that is intended to compete with Snapchat and permit users to send each other photo and video messages.

Is Twitter in trouble? Twitter’s leadership was thrown into disarray on June 12 after Ali Rowghani resigned suddenly as the company’s chief operating officer amid a dispute with Chief Executive Dick Costolo. Twitter’s stock has fallen about 42 percent this year as concerns have arisen that the company is not signing up enough new users.

Should you make social media rules for your marriage? More and more couples are sitting down with their lawyers before marriage to discuss a social media clause in their prenuptial agreement – covering what they can and cannot say or post about each other. These agreements appear to be enforceable in court if they are specific enough.

The CIA is on Twitter! The CIA has entered the realm of social media, setting up a Twitter presence and a Facebook account. There one can find, among other things, reflections on intelligence history and fun facts from the CIA World Factbook.

Can’t ask for personal social media account logins in Louisiana! 
On May 23, Louisiana became the latest state to enact a law prohibiting employers and public and private educational institutions from requiring applicants, employees, and students to provide access to their personal online accounts.

Every company would be well advised scrutinize their marketing practices on an ongoing basis to ensure that they do not inadvertently expose the company to risks under the Lanham Act. Two US Supreme Court cases decided this term could result in a substantial increase in the number of Lanham Act claims brought under that statute alleging “unfair competition” resulting from product labeling and marketing practices that are alleged to be false or misleading.

  • Lexmark International, Inc. v. Static Control Components, Inc., No. 12-873, slip op. (March 25, 2014), in which the Supreme Court broadly construed the Lanham Act to permit lawsuits by all companies alleging injuries that were proximately caused by false or misleading advertising or promotion, even if the plaintiff was not a direct competitor of the defendant and suffered only “collateral damage.”
  • Pom Wonderful LLC v. Coca-Cola Co., No. 12–761, slip op.  (June 12, 2014), the Court’s second Lanham Act case of the term,  in which it eliminated a potential safe harbor from Lanham Act claims for companies in regulated industries who complied fully with applicable regulations regarding the labeling and marketing of their products.

Interested in being social anonymously? It is harder than you think… Recently a variety of “private” media platforms have emerged. For years, social media platforms have facilitated (or even, in many cases, required) us to use our real identities, with the aim of building friendships and networks in the online world. But these new social media apps (such as “Secret,” “Whisper,” “Yik Yak”) are designed specifically to enable users to share posts anonymously.

“Anonymous” doesn’t necessarily mean anonymous. Even if users are not required to provide any form of contact details to use an anonymous app, the app is very likely to collect certain information that will help identify the user (e.g., the unique digital ID of the user’s phone, location information, etc.). Therefore, it could be be fairly easy to trace a user if required (e.g., by subpoena/court order). Indeed Secret’s Terms of Service state, “We may share information about you … in response to a request for information if we believe disclosure is in accordance with any applicable law, regulation or legal process, or as otherwise required by any applicable law, regulation or legal process.”

For more updates visit: http://www.sociallyawareblog.com