Home » 2013 » September

Monthly Archives: September 2013

New CA Law Offers Additional Protections to Minors Using Social Media

Here is a summary of the new law (SB 568).  The italicized portions indicate major changes in the current law.  The full text of the bill is available here.

Existing law requires an operator of a commercial Web site or online service that collects personally identifiable information through the Internet about individual consumers residing in California who use or visit its commercial Web site or online service to make its privacy policy available to consumers, as specified.

Existing federal law requires an operator of an Internet Web site or online service directed to a child, as defined, or an operator of an Internet Web site or online service that has actual knowledge that it is collecting personal information from a child to provide notice of what information is being collected and how that information is being used, and to give the parents of the child the opportunity to refuse to permit the operator’s further collection of information from the child.

This bill would, on and after January 1, 2015, prohibit an operator of an Internet Web site, online service, online application, or mobile application, as specified, from marketing or advertising specified types of products or services to a minor. The bill would prohibit an operator from knowingly using, disclosing, compiling, or allowing a 3rd party to use, disclose, or compile, the personal information of a minor for the purpose of marketing or advertising specified types of products or services. The bill would also make this prohibition applicable to an advertising service that is notified by an operator of an Internet Web site, online service, online application, or mobile application that the site, service, or application is directed to a minor.

The bill would, on and after January 1, 2015, require the operator of an Internet Web site, online service, online application, or mobile application to permit a minor, who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application, to remove, or to request and obtain removal of, content or information posted on the operator’s Internet Web site, service, or application by the minor, unless the content or information was posted by a 3rd party, any other provision of state or federal law requires the operator or 3rd party to maintain the content or information, or the operator anonymizes the content or information. The bill would require the operator to provide notice to a minor that the minor may remove the content or information, as specified.

Bland v. Roberts: Facebook “Like” is Protected Speech

This week the 4th Circuit Court of Appeals in Bland v. Roberts overruled a federal district court and determined that a Facebook “Like” is speech protected by the First Amendment.  Previously, the district court had determined that clicking the “Like” was “insufficient speech to merit constitutional protection.”  However, the 4th Circuit determined that “Liking” a political candidate’s campaign page was “the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

This case arose from a corrections officer (Daniel Carter) who lost his job after the local sheriff (B.J. Roberts) in Hampton, Virginia was reelected.  Carter supported Roberts’ opponent and “liked” his Facebook page.

For more on this case go here.

OH Legislation Introduced to Protect the Social Media Passwords of Employees

Ohio Senator Charleta Tavares recently introduced Senate Bill 45.  The bill, known as the Social Media Privacy Protection Act, would:

prohibit employers, employment agencies, personnel placement services, and labor organizations from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee.

In describing her legislation Senator Tavares states:

This bill is an effort to correct the invasion of the privacy of individuals who simply want to work.

While many applaud the bill, some are concerned that it would limit the rights of businesses to conduct proper background checks on those they hire.  Another group feels that the law does not go far enough and should be expanded to cover universities and students.  It remains to be seen whether or not this legislation or some version of it will be brought to the full senate for a vote.  An earlier version of this bill was introduced in the previous session of the Ohio Senate.  If the bill does become law, Ohio will become the 11th state to offer employees this type of social media protection.

For more background on this legislation go here.

YouTube Videos and Criminal Charges

Last week, the media reported on two different high profile incidents in which individuals placed incriminating videos of themselves on YouTube.  In the first video, Matthew Cordle a 22 year-old Ohio man admits to killing Vincent Canzani in a drunk driving accident three months ago.  In the video, which is available here, Cordle states the following:

My name is Matthew Cordle, and on June 22nd, 2013, I hit and killed Vincent Canzani.  This video will act as my confession.

Later on in the video Cordle says:

I won’t dishonor Victor’s memory by lying about what happened.  By releasing this video, I know exactly what it means.  I’m handing the prosecution everything they need to put me away for a very long time.

Cordle ends the video by telling viewers not to drink and drive. The Franklin County Prosecutor’s Office which is handling the investigation of Canzani’s death says the case will go before the grand jury next week.

The other example involved a NY city driver who uploaded a video dash cam of himself driving at excessive speeds in the city.  He apparently drove 26.5 miles around Manhattan in just 24 minutes.  The driver who posted this video anonymously (he went by the name Afroduck) on YouTube bragged about how he couldn’t get caught.

Once the video hit the mainstream media, the NYC Chief of Police made it his priority to identify and find Afroduck.  Last week, the police discovered that Afroduck’s legal name was Christopher Adam Tan.  Mr. Tan was arrested and charged with reckless driving and reckless endangerment.  The YouTube video of his driving is available here

Facebook Photo Does Not Taint Lineup Identification

In State v. Mitchell, a victim was robbed in her apartment by two criminal defendants.  The victim discussed her ordeal with a neighbor who thought that she might know the identity of one of the criminal defendants.  The neighbor showed the victim a Facebook photo of Marlon Mitchell whom the victim positively identified as one of the individuals who robbed her.  The victim then contacted the police and told them that she knew the identity of one of her attackers. 

Using the Ohio Law Enforcement Guide software system, the Canton Police Department put together a photo lineup that included Mitchell’s drivers license photo.  Upon examining the photo lineup, the victim was able to once again identify Mitchell.  At trial, Mitchell was convicted and he subsequently appealed. 

On appeal, Mitchell argued that the identification of him by the victim was tainted because she had previously viewed his Facebook photograph. The appellate court disagreed finding that there was no improper police influence in the identification procedure. The appellate court pointed out that the police did not view Mitchell’s Facebook photo.  Furthermore, the police did not direct the victim to do so.