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Monthly Archives: February 2017

Packingham v. North Carolina (Sex Offenders and Social Media)

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Packingham v. North Carolina (Sex Offenders and Social Media)

Yesterday, the Supreme Court heard oral argument in Packingham v. North Carolina. The issue before the Court was

Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

To read commentary about the oral argument go here.  I will also post the recording of the oral argument as soon as it becomes available on the Oyez website.

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Understanding the Consumer Review Fairness Act of 2016

goldman

Understanding the Consumer Review Fairness Act of 2016

Abstract

Consumer reviews are vitally important to our modern economy. Markets become stronger and more efficient when consumers share their marketplace experiences and guide other consumers toward the best vendors and away from poor ones.

Businesses recognize the importance of consumer reviews, and many businesses take numerous steps to manage how consumer reviews affect their public image. Unfortunately, in a misguided effort to control consumer reviews, some businesses have deployed contract provisions that ban or inhibit their consumers from reviewing them. I call those provisions “anti-review clauses.”

Anti-review clauses distort the marketplace benefits society gets from consumer reviews by suppressing peer feedback from prospective consumers, which in turn helps poor vendors stay in business and diminishes the returns that good vendors get from investments in quality (thus degrading their willingness to make those investments).

Recognizing the threats posed by anti-review clauses, Congress banned them in the Consumer Review Fairness Act of 2016 (the CRFA). As the House Report explains, the law seeks “to preserve the credibility and value of online consumer reviews by prohibiting non-disparagement clauses restricting negative, yet truthful, reviews of products and services by consumers.” By doing so, the CRFA helps advance the effective functioning of marketplaces.

This essay helps readers understand the CRFA. Part I provides some background about anti-review clauses. Part II describes the new law and how it relates to existing law. Part III considers if the law goes far enough to protect consumer reviews. The article then has a short conclusion.

Best Practices For Creating Your Law Firm Social Media Policy

Best Practices For Creating Your Law Firm Social Media Policy

As the way law firms communicate with the community evolves, it’s important that law firms evolve with the times by creating policies that address employee social media use

Open Letter Condemning Proposal to Demand Passwords to Enter the U.S.

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Below is the letter.  To see a list of the individuals who have signed on go here.

The undersigned coalition of human rights and civil liberties organizations, trade associations, and experts in security, technology, and the law expresses deep concern about the comments made by Secretary John Kelly at the House Homeland Security Committee hearing on February 7th, 2017, suggesting the Department of Homeland Security could require non-citizens to provide the passwords to their social media accounts as a condition of entering the country.

We recognize the important role that DHS plays in protecting the United States’ borders and the challenges it faces in keeping the U.S. safe, but demanding passwords or other account credentials without cause will fail to increase the security of U.S. citizens and is a direct assault on fundamental rights.

This proposal would enable border officials to invade people’s privacy by examining years of private emails, texts, and messages. It would expose travelers and everyone in their social networks, including potentially millions of U.S. citizens, to excessive, unjustified scrutiny. And it would discourage people from using online services or taking their devices with them while traveling, and would discourage travel for business, tourism, and journalism.

Demands from U.S. border officials for passwords to social media accounts will also set a precedent that may ultimately affect all travelers around the world. This demand is likely to be mirrored by foreign governments, which will demand passwords from U.S. citizens when they seek entry to foreign countries. This would compromise U.S. economic security, cybersecurity, and national security, as well as damage the U.S.’s relationships with foreign governments and their citizenry.

Policies to demand passwords as a condition of travel, as well as more general efforts to force individuals to disclose their online activity, including potentially years’ worth of private and public communications, create an intense chilling effect on individuals. Freedom of expression and press rights, access to information, rights of association, and religious liberty are all put at risk by these policies.

The first rule of online security is simple: Do not share your passwords. No government agency should undermine security, privacy, and other rights with a blanket policy of demanding passwords from individuals.

Social Media and ‘Flash Infringement’: Live Music Culture and Dying IP Protection

Michael Epstein

epstein

Social Media and ‘Flash Infringement’: Live Music Culture and Dying IP Protection

This article interrogates issues of music intellectual property rights infringement at live performances. I am especially interested in music infringement at live concerts and DJ-driven mash-up parties, and the use of technologies to transfer protected content by smartphone — or remote storage device — at or near the performance site. The covalent forces of social media, including the use of smartphone apps such as Meerkat and Periscope, and flash mob culture have created a perhaps unstoppable threat to copyright and other intellectual property rights — a phenomenon that I define in this article as “flash infringement.” In a flash infringement setting, it may be impossible to stop the infringement among thousands of partygoers or fans and their online followers.

Court Says Google Has A First Amendment Right To Delist Competitor’s ‘Spammy’ Content

techdirt

Court Says Google Has A First Amendment Right To Delist Competitor’s ‘Spammy’ Content

Last summer, a Florida federal court reached some unusual conclusions in a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.

As to Section 230, the court found that Google’s delisting efforts weren’t in “good faith.” The reason cited was e-ventures’ claim that the delisting was in “bad faith.” So much for this seldom-used aspect of Section 230: the “Good Samaritan” clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for “viewed in the light most favorable to the non-moving party.” Apparently, Google’s long history of spam-fighting efforts is nothing compared to an SEO wrangler’s pained assertions…

#Advocacy: Social Media Activism’s Power to Transform Law

Stacy Steinberg

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#Advocacy: Social Media Activism’s Power to Transform Law

Abstract

Attorneys influence the actions of legislators, courts, and community leaders by working alongside social movements. Together, these advocates seek to challenge the status quo by setting precedent that will ensure equality and justice for all individuals. While social movements often use social media to convey their message or to gather support for their cause, many attorneys are unfamiliar with leveraging this powerful new technology.

Social media platforms provide a low-cost, fast, and easy-to-use tool that effectively disseminates information and helps advocates garner support for their cause. However, some social change advocates, including lawyers and policymakers, are hesitant to get involved in social media activities. These advocates are missing unique and powerful opportunities to move their causes forward, and are perhaps doing so at their peril.

Online activism has both amplified the voices of marginalized individuals and shifted national conversations on important legal and social issues. This Article explores the role of social movements in cause-lawyering, and introduces advocates to social media’s role in creating meaningful legal change. It first discusses social movements and community activism in the context of law. Next, this Article illustrates the unique power of online advocacy (often referred to as #activism) to create legal and social reform. This article concludes by proposing that attorneys understand and embrace social media, as it has revolutionized how laws are created and enforced in all aspects of society.