+ Trademark & Copyright Law Lions, Tigers & Friends: Social Media Law Roundup 29 th Annual...

+

Trademark & Copyright Law Lions, Tigers & Friends: Social Media Law Roundup

29th Annual Intellectual Property Law Conference April 2, 2014

+Today’s Discussion: Panel

Hannah Poteat Poteat Law

Jennifer Criss Drinker Biddle & Reath, LLP

Ganka Hadjipetrova Hadjipetrova Law

Perry Sofferman Becker & Poliakoff, P.A.

+Today’s Discussion: Issues

Personal Jurisdiction Over Social Media Users

Social Media and Discovery in Civil Litigation

Litigating Privacy Policies

Social Media and the First Amendment

Impersonation and Social Media

+Personal Jurisdiction Over Social Media Users

+Personal Jurisdiction

Intercarrier Communs., LLC v. Kik Interactive, Inc., No. 3:12‐CV‐771‐JAG, 2013 U.S. Dist. LEXIS 112715 (E.D. VA Aug. 9, 2013) “A company does not ‘consciously’ or ‘deliberately’ target a

forum if a user unilaterally downloads and uses its software within that forum, nor does ICC cite any authority supporting its broad interpretation of specific jurisdiction.”

+Personal Jurisdiction

Harp v. Koury, No. 13‐2470, 2013 U.S. Dist. LEXIS 117785 (E.D. PA Aug. 15, 2013) Court tested possibility of finding specific jurisdiction under

the Calder “effects” doctrine. Finding that the defendant did not know that the plaintiff

would suffer the brunt of the harm in the forum, i.e. the defendant had not “expressly aimed” the tortious conduct at the forum, state the Court dismissed the case for lack of personal jurisdiction.

+Personal Jurisdiction

Hyperbaric Options, LLC v. Oxy‐Health, LLC, No. 12‐12020, 2013 U.S. Dist. LEXIS 140347 (E.D. MI Sept. 30, 2013)

Court followed Sixth Circuit’s narrowed approach to the Calder “effects” test, noting that “something more” is required to demonstrate that the defendant directed its activity toward the forum state. The Court refused to establish personal jurisdiction despite the defendant’s knowledge that the plaintiff would suffer the brunt of the harm in the forum state.

+Personal Jurisdiction

NobelBiz, Inc. v. Veracity Networks, LLC, No. 13‐CV‐2518 YGR, 2013 U.S. Dist. LEXIS 139709 (N.D. CA Sept. 27, 2013) Court said that Veracity’s mere presence on social media

sites did not, without more, support an inference that it seeks nationwide sales.

+Personal Jurisdiction

Caspers Ice Cream, Inc. v. Fatboy Cookie Co., No. 1:12-CV-133, 2013 U.S. Dist. LEXIS 76058 (D. UT May 29, 2013) Court said that the accessibility of New Jersey company’s

website and social media in Utah was not a sufficient contact for Fatboy to anticipate it would be subject to suit in that state.

+Social Media and Discovery in Civil Litigation

+Discovery

Keller v. Nat’l Farmers Union Prop. & Cas. Co., No. C‐12‐72‐M‐DLC‐JCL, 2013 U.S. Dist. LEXIS 452 (D. Mont. Jan. 2, 2013) Court applied threshold test whereby discovery of a

plaintiff’s private social networking site content is only permissible when the defendant makes a “threshold showing that publicly available information on those sites undermines the plaintiff’s claims.”

+Discovery

Salvato v. Miley, No. 5:12-cv‐635‐Oc‐10PRL, 2013 U.S. Dist. LEXIS 81784 (M.D. Fl. June 11, 2013) Court applied threshold test where a party “may obtain

discovery on any nonprivileged matter that is relevant to any part’s claim or defense” if it meets the threshold burden of showing that the requested discovery is relevant.

+Discovery

Jewell v. Aaron’s, Inc., No. 1:12‐cv‐0563‐AT, 2013 U.S. Dist. LEXIS 102182 (N.D. Ga. July 19, 2013) In this class action the Court held that a single individual’s

(the named plaintiff’s) post on a social media site has no bearing on whether all 87 plaintiffs had received a bona fide meal period as required under federal law.

+Discovery

Giacchetto v. Patchogue‐Medford Union Free Sch. Dist., 293 F.R.D. 112 (E.D.N.Y. 2013) The court opted not to apply the threshold test to

determine whether the school district was entitled to discovery of any private social networking posts. Instead, the court conducted a traditional relevance analysis.

The court did not require Giacchetto to provide routine status updates but did require her to produce any specific references to emotional distress suffered as a result of any source of stress, not just the incident at issue.

+

Litigating Privacy Policies

+Litigating Privacy Policies

Harris v. comScore, 825 F. Supp. 2d 924 (N.D. Ill. 2011) Court held that “a click-through agreement is not enforceable

if its terms are not reasonably apparent to the user” and that “it is not reasonable to expect a user casually downloading free software to search for such an agreement if it is not immediately available and obvious where to obtain it.”

+Litigating Privacy Policies

FTC v. Wyndham Hotels and FTC v. LabMD The FTC brought actions against Wyndham and LabMD,

respectively, under its Section 5 authority for unfair and deceptive practices for data breaches.

+Litigating Privacy Policies

In re Google Inc. Gmail Litigation, Case No.: 13‐MD‐02430‐LHK, 2013 U.S. Dist. LEXIS 172784 (N.D. CA Sept. 26, 2013) Plaintiffs from several states brought suit against Google for

targeted advertising that appears on Gmail users’ pages in violation of privacy laws.

+Social Media and the First Amendment

+Legislation Restricting or Banning Use of Social Networks by Registered Sex Offenders

California Delaware Georgia Indiana Louisiana Michigan Nebraska

Nevada New Hampshire New Jersey New York North Carolina Utah Wisconsin

+Legislation: Provisions (generally)

Require disclosure of Internet identifying information

Internet restrictions (e.g., no use of social media)

Provide consent to search computer or device

Monitoring of Internet use

+Challenges

First Amendment

Fourth Amendment

Ex Post Facto

Fourteenth Amendment

Supremacy Clause

+First Amendment Analysis

Content based: strict scrutiny

Content neutral: intermediate scrutiny

Prior restraint?

+Content Neutral

Invalidated as insufficiently narrowly tailored

Failing to leave open alternative channels of communication

Disclosure of Internet identification: violation of one’s right to maintain anonymous speech

+Key Issues

Parole

Supervised release

Civil, non-punitive

+First Amendment

John Doe, et al. v. State of Nebraska, 898 F. Supp.2d 1086 (D. Neb. 2012) Case examined a statute that criminalized registered sex

offenders’ use of social networking sites Cases raises First Amendment, Due Process, Ex Post Facto

and Fourth Amendment issues

+First Amendment

J.B v. New Jersey State Parole Board, 433 N.J. Super. 327 (2013) Court held that statute and regulations authorizing internet

restrictions to be imposed on offenders did not facially violate offenders’ free speech rights

+First Amendment

Perez v. Dietz Development, LLC, No. 122157, 2012 Va. LEXIS 227 (VA Dec. 28, 2012) Case involving critical reviews of contractor on Yelp and

Angie’s List that included customer’s suspicion that contractor stole jewelry from plaintiff’s house. State court issued preliminary injunction but Virginia

Supreme Court reversed for unspecified duration and availability of other remedies at law.

+First Amendment

Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va.App. 678, 752 S.E.2d 554 (Ct. App. VA 2014) Case involves the balance between the right to free speech

by anonymous publishers and businesses’ interest to protect their reputation from defamatory statements.

The state court ordered Yelp to reveal the identities of 8 negative reviewers of the plaintiff’s business. Yelp refused and was held in contempt; the court of appeals affirmed. Yelp appealed before the VA supreme court in February;

decision is pending

+First Amendment

Gordon & Holmes v. Love, No. BC462438 (Superior Court of Los Angeles County, California) Attorney sought $8 million in damages against former

client, Courtney Love, for an allegedly libelous Tweet (Love suggested that Holmes had been “bought off” in the case against the administrators of Kurt Cobain’s estate)

Jury found that Love’s tweet was not libelous Love said that it was intended as a private message and

that she deleted the Tweet immediately upon realizing it was published publicly

+Impersonation and Social Media

+E-Impersonation

As of June 2012, approximately 83 million of 955 million Facebook profiles were fake

Assist in gathering intelligence

Cyberbullying

Fraud

False endorsement

Scraping

+Computer Fraud and Abuse Act 18 U.S.C. §1030

Criminal cybersecurity law that protects federal government computers, financial institution computers, and other computers connected to the Internet from trespass, threats, damage, spying, and being used for purposes of fraud

Interstate or foreign commerce or communication

Conspiracy and attempt to commit are subject to same criminal penalties as the offense itself

Also provides for a private right of action

+Key Issues

Protected Computer? A computer used by a financial institution or the U.S.

government, or a computer used in or affecting interstate or foreign commerce or communication, including a computer located outside the U.S.

Exceeds authorized access? Accessing a computer with authorization and using this

access to obtain or alter information in the computer that the accessing party is not entitled to obtain or alter

+Key Issues (continued)

It is a crime to “intentionally” access a protected computer without authorization and as a result cause damage and loss

“Damage” is an impairment to the integrity or availability of data, a computer program, system or information

“Loss” is a “reasonable cost” to a victim, including the cost of responding to an offense, conducting a damage assessment, restoring data, programs, systems, or information to its condition prior to the offense, and revenue lost, costs incurred, or other consequential damages incurred because of interruption of service

+E-Impersonation

Consider in context of United States v. Lori Drew, No. CR 08-0582-GW (C.D. Cal. Aug. 28, 2009)

Matot v. CH, No. 13‐cv‐153‐TC, 2013 U.S. Dist. LEXIS 138327 (D. Or. Sept. 26, 2013)

Case involving middle school assistant principal’s claim alleging that the creation of social media accounts under his name by students violates the Computer Fraud and Abuse Act

+

Thank You!

Lions, Tigers & Friends: Social Media Law

Roundup

Hannah Poteathpoteat@poteatlaw.com415.967.3690

Jennifer Crissjennifer.criss@dbr.com202.230.5648

Ganka Hadjipetrovaganka@hadjipetrovalaw.com408.910.0390

Perry Soffermanpsofferman@bplegal.com954.364.6021