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Monthly Archives: June 2014

Inheriting Digital Assets

Ever wonder whether or not you can leave your Facebook page or avatar to someone in your will?  Or better yet, what is the process for passing along your digital assets after you die? At present, few states (CT, ID, IN, NV, OK, RI, and VA) have addressed the topic of fiduciary authority over digital assets. This is why committee members of the National Conference of Commissioners on Uniform State Laws are getting together next month (July 11-17th) to examine a draft Uniform Fiduciary Access to Digital Assets Act

These experts are attempting to provide greater clarity to how states should address social media-related probate issues. Specifically, the act to be discussed examines who (conservators of guardians, agents acting under power of attorney, trustees, or personal representatives) can access a decedent’s social media account. According to the chair of the committee Suzanne Brown, a uniform act is “crucial…for national banks and trust companies who act as fiduciaries in many states, and for the national providers of various digital services and accounts.”

Redefining Attention (and Revamping the Legal Profession?) for the Digital Generation

Redefining Attention (and Revamping the Legal Profession?) for the Digital Generation

Lauren A. Newell

Abstract:       With computers, text messages, Facebook, cell phones, smartphones, tablets, iPods, and other information and communication technologies (“ICTs”) constantly competing for our attention, we live in an age of perpetual distraction. Educators have long speculated that constant exposure to ICTs is eroding our ability to stay focused, and recent research supports these speculations. This raises particularly troubling implications for the practice of law, in which being able to pay sustained attention to the task at hand is crucial.

Research also indicates that the brains of today’s young people, the “Digital Generation,” may function differently than the brains of their elders because the Digital Generation have grown up immersed in digital technology. This suggests that the techniques today’s legal professionals might use to cultivate attention in the face of technological distraction could prove to be inappropriate for future generations of lawyers. When the Digital Generation are both the attorneys and the clients, it may be the practice of law — rather than the lawyers — that needs to change.

This paper explores the science of attention and explains why attention is important. Next, it introduces the Digital Generation and their relationship with digital technology. It then examines the connection between ICT exposure and attention and reviews several suggestions that others have made about how legal professionals should respond to the challenges ICTs pose to focused attention. This paper then takes the conversation in a new direction: It predicts ways in which the legal profession, rather than the legal professionals, will necessarily have to adapt to technology in the future. Finally, it offers thoughts about how the legal profession should view its relationship with technology going forward.

When Retweets Attack: Are Twitter Users Liable for Republishing the Defamatory Tweets of Others?

When Retweets Attack: Are Twitter Users Liable for Republishing the Defamatory Tweets of Others?

 Daxton Stewart


Under the republication doctrine, repeating false and defamatory statements has traditionally triggered liability for the repeater. However, some confusion has emerged regarding retweeting the posts of others on Twitter, the popular microblog site. Does retweeting the defamatory statement of another open the retweeter to liability? This article examines exceptions to the republication doctrine such as the single publication rule, the wire service defense, and the Communications Decency Act (CDA) to answer this question. A review of c.ourt opinions leads to the conclusion that Section 230 of the CDA provides a powerful shield for users of interactive computer services such as Twitter

Stored Communications Act and Digital Assets

Stored Communications Act and Digital Assets



David Horton


The story has become all too familiar. Someone dies, and her loved ones request the contents of her text, email, or social media accounts. Perhaps they wish to preserve this vibrant electronic slice of the decedent’s life. Perhaps they are compelled in their grieving to sift through the minutiae of the decedent’s final days. Or perhaps they are merely trying to fulfill their duty as trustee, executor, or administrator to pay the decedent’s bills and inventory her property. However, the decedent’s Internet Service Provider (“ISP”) — be it Facebook, Yahoo!, or Microsoft — refuses to comply.

As Naomi Cahn explains in her outstanding contribution to the Vanderbilt Law Review’s Symposium on the Role of Federal Law in Private Wealth Transfer, these ISPs are afraid of a byzantine federal statute from 1986: the Stored Communications Act (“SCA”). Section 2701 of the SCA criminalizes unauthorized access to electronic communications: a seemingly nasty glitch for fiduciaries attempting to marshal a decedent’s digital assets. Section 2702 bars ISPs from disclosing a customer’s private data without her “lawful consent.” Citing the fact that the SCA predates the rise of email — let alone the phenomenon of a valuable Twitter account — Professor Cahn argues that the statute should not govern fiduciaries. Alternatively, assuming that the SCA does apply, Professor Cahn discusses various ways around this obstacle, including the Uniform Law Commission’s draft Fiduciary Access to Digital Assets Act (“FADA”), which would clarify that fiduciaries generally enjoy the “authorization”’ and “lawful consent” necessary to acquire a decedent’s online accounts.

This short invited reply takes a different route to the same destination. It begins by offering a reading of the SCA that diverges slightly from Professor Cahn’s. However, it uses that discussion to echo her critique of the SCA and bolster the case for the FADA

SCT to Hear Facebook Criminal Threat Case: Elonis v. U.S.

This week the U.S. Supreme Court agreed to hear Elonis v. U.S. In this case, the defendant was convicted of violating the Interstate Communications Act and sentenced to more than three years in prison. His conviction stemmed from a series of ominous Facebook posts in which he threatened his wife, a former employer, and the community as a whole. Some of the individuals threatened by the defendant were friends with him on Facebook.

Here is a sample of what he posted:

That’s it, I’ve had about enough

I’m checking out and making a name for myself

Enough elementary schools in a ten-mile radius

to initiate the most heinous school shooting ever imagined

And hell hath no fury like a crazy man in a Kindergarten class

The only question is…which one?

Fold up your PFA [Protection from Abuser oder] and put it in your pocket

Is it thick enough to stop a bullet? 

The defendant argues that these posts were rap lyrics and that he had no intent on carrying out what he wrote on Facebook. The defendant also claims that the posts were protected by the 1st Amendment and that in order to be convicted the government had to prove that he had a subjective intent to threaten.This subjective intent standard is the law in a few jurisdictions (Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont). In contrast, the government argues that the lower courts were correct when they upheld the defendant’s conviction because the prosecution only needed to prove that a “reasonable person” would regard the defendant’s Facebook posts as threatening. It will now be up to the SCT to determine the applicable standard to apply to criminal threats

Jones v. Dirty World Entertainment (6th Circuit Overrules Trial Judge)

Today, a 3-judge panel in the 6th Circuit ruled in favor of Dirty World Entertainment’s appeal of a defamation suit brought by Sarah Jones. In the opinion, the panel vacated an earlier judgment for Sarah Jones and granted the defendant’s motion for judgment as a matter of law.

As some may recall, a jury found Dirty.com liable for hosting a website that allowed and arguably encouraged others to make defamatory statements about Sarah Jones. Generally speaking, computer service providers like Dirty.com are not held responsible or liable for the content posted by third parties. This is because Section 230 of the Communications Decency Act grants computer service providers immunity with respect to the content posted by others so long as those computer service providers are not providing content.

In this case, the trial judge went against the national trend and denied Dirty.com immunity. According to the 6th Circuit, this denial was based on the trial judge’s mistaken belief that the defendants had developed or created the defamatory content. The 6th Circuit went on to say that the judge applied the wrong standard (“Encouragement Test”) to determine whether a computer service provider creates or develops content. The panel then went on to adopt its own standard (“Material Contribution Test”) to determine whether a computer service provider develops or creates content. 

In applying this Material Contribution Test, the panel determined that the defendants did not materially contribute to the illegality of the defamatory third party posts. Thus, the defendants should be granted immunity. The panel found that simply selecting posts for publication was not material contribution nor was providing commentary. This is because the comments were not themselves defamatory and they occurred after the defamatory posts by third parties were already made.

The Constitutional Protection of Information in a Digital Age

The Constitutional Protection of Information in a Digital Age

Gerard J. Clark

Abstract: To state the obvious, we live in a world that is awash in information. Discoveries of new scientific information occur daily in the laboratories of the world. The Facebook accounts of millions of teenagers contain information about the love lives of their friends. Google traces the search information of its subscribers. Supermarkets use personalized discount cards to trace the purchasing preferences of their customers. The National Security Agency (NSA) has been building a one-million-square-foot data and supercomputing center in Utah, which is expected to intercept and store much of the world’s Internet communication for decryption and analysis. States maintain driver, tax, and voter records. All of these records contain information that can yield profit for some and embarrassment for others.

The First Amendment to the U.S. Constitution dictates access to and dissemination of this information, whereas the Fourth Amendment limits such access and dissemination. Additionally, common-law doctrines of privacy, publicity, and defamation apply to this information, as do copyright, patent, and trademark law. State and federal legislatures race to regulate the collection, storage, and dissemination of this data and information in the public interest. This Article will review recent developments in the constitutional treatment of access to data and information, will comment on an illustrative group of statutory and common-law developments, and will discuss a number of current noteworthy controversies