Gender Discrimination Trial May Rock the Silicon Valley Tech Community

Interim CEO of Reddit Ellen Pao is nearing the end of her four-week trial on the gender discrimination claims she brought against her former employer, venture capital firm Kleiner Perkins.  The trial highlights the gender imbalance and dearth of women in leadership positions in the tech industry.

Pao’s claims

In her May 2012 gender discrimination complaint filed in San Francisco Superior Court, Pao alleged that Kleiner Perkins paid her less and failed to promote her as regularly as her similarly-situated male colleagues; that the firm did nothing to prevent male executives from sexually harassing her; and that the firm retaliated against her for raising concerns about this treatment to management.  Additionally, Pao alleged that the predominantly male partner group shut her out of opportunities for advancement and relegated her to a less visible role with the firm’s clients.

More broadly, Pao claimed that her experience at Kleiner Perkins was not uncommon.  The complaint suggested that there is a pattern of sexual harassment and that “at least one other investment partner and three administrative assistants, all women, complained about [the same harasser’s] behavior.”  Pao stated that the firm’s male partners regularly excluded female executives from business development events.  One such partner told Pao that women were not invited because they would “kill the buzz.”

Pao seeks $16 million in lost back pay plus punitive damages and injunctive relief in order to prevent further sexual harassment, discrimination, and retaliation at Kleiner Perkins.

Trial

The four-week trial will come to a close this Tuesday, March 24, when both sides present their closing arguments.  In order for Pao to prevail, she must persuade a 12-person jury – 6 women, 6 men – that “her gender was a substantial motivating factor in the [company’s] decision[s]” not to promote her and, ultimately, to terminate her employment.  The presiding judge, Harold Kahn, permitted jurors to submit their own questions for witnesses.  The questions were challenging, and one such query was directed at Pao: “Why did you stay and work in an environment you didn’t trust from the outset?”

On Saturday, March 21, Judge Kahn denied the defendant’s motion to prohibit punitive damages for Pao, holding that there is “sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional discrimination.”  This win would have been “strategicall[y] huge” for the firm, notes one prominent employment attorney.  If the jury decides that Kleiner Perkins must pay punitive damages, the firm will be required to open its books so that the jury can determine “how big a payment will suffice.”  Some expect that punitive damages could total over $100 million.

Leading up to this point, both sides have crafted vastly different narratives about Pao’s seven years with Kleiner Perkins.  The firm presented testimony that characterized Pao as someone with significant interpersonal issues – as a “problem child who frequently clashed with her peers” – and pointed to thousands of pages of emails Pao forwarded to her personal address to suggest that she was “plotting to haul the firm into court all along.”  Several women testified about their positive experiences there.  Investor Mary Meeker, nicknamed the “Queen of the Internet,” testified that the firm is “the best place to be a woman in the business.”  A Harvard Business School professor found that Kleiner Perkins employs more women in more highly placed positions than other comparable firms.

Pao’s attorneys, on the other hand, painted Kleiner Perkins as an old boy’s club, epitomical of other VC firms in Silicon Valley.  Pao was portrayed as a “champion for women” in the venture capital community.  She told the jury that she sued the firm because Kleiner Perkins “was not going to change unless [she] pushed it” and that she “couldn’t let women be at risk and treated unfairly.”  To that end, Pao presented evidence that after she ended a casual six-month relationship with a co-worker, the man endeavored to “make [her] job much more difficult” by cutting her out of meetings and emails.  Higher-level management and HR failed to confront this and other problems, she testified, because the firm is lacking in HR infrastructure.  Pao also stated that the firm removed her from an investment once she returned from a three-month maternity leave, even though she was the primary contact with the client.

In a recent poll of 500 women who work in venture capital and private equity, 65% of participants believed that Pao will win, but for “a far lesser amount” than the $16 million she has requested.

Broader implications

Bloomberg columnist Brad Stone wrote in his latest article about the Pao trial, “There are always two stories in every Big Trial: the case itself, with its conflicting sets of facts, and the wider narrative—the way those facts fit into the lives of millions of people outside the courtroom.”  Indeed, the impact of the Pao trial is far-reaching, regardless of the verdict.

The case shines light on the absence of women in the tech industry and the many different subtle, but insidious, forms of work place discrimination that women today endure.  At most large tech companies, the workforce is comprised of less than 30 percent women.  In the niche venture capital industry, only 6 percent of VC investors are women, “down from 10 percent in 1999.”  According to a Harvard Business Review study, “50 percent of women working in science, engineering, or technology will leave prematurely because of work environments they deem hostile.”

Stanford Law Professor Deborah Rhode explained in a recent New Yorker piece that the evidence presented in the Pao case “is very typical of what’s out there in Silicon Valley.”  Rhode went on to say that “there are no smoking guns; much of it is what social scientists call micro-indignities—small incidents that viewed individually may seem trivial, but when viewed cumulatively point to a practice of insensitivity and devaluation that can get in the way of work performance.”

Inherent to these “micro-indignities” are stereotypes associated with being a woman in a position of power.  Professor Joan Williams of UC Hastings, leading expert in women’s issues in the workplace, noted, “What Ellen Pao is saying is that she got caught between being seen as too masculine to be likeable, or too feminine to be competent.”  She added that, though Pao might well be impossible to work with, “this does track a common pattern of gender bias” that she sees as especially common in tech and finance.

Some women in the tech industry have stepped forward to relay their skepticism that Pao’s case will result in positive changes at firms like Kleiner Perkins.  The CEO of Tradesy, an online fashion site in which Kleiner Perkins invested, told Bloomberg that a male CEO confided in her that he “doesn’t know how to talk to female colleagues any more and that it’s become too easy to say the wrong thing.” She is concerned that the case “may make it harder for men to feel free to give women the kinds of constructive criticism that men receive regularly and that they benefit from,” she says.  The managing partner of the Silicon Valley office of Morgan Lewis shared a similar concern.  She told the same publication that she worries that men will be afraid that they risk being hauled into court if they choose to mentor women.

It remains to be seen what effect, if any, a case like Pao’s will have on the industry in the long term.  But in the short term, more women are coming forward about their experiences with gender discrimination and are using public litigation to hold tech giants like Twitter accountable.

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Bouchat v. Baltimore Ravens – What’s Fair is Fair

The starting point for this story dates back to 1995. A security guard and an amateur artist named Fredrick Bouchat created the “Flying B logo” for the Ravens football team (“Logo”). He sent the proposed Logo, asking only for a letter of recognition and an autographed helmet. The Ravens ended up using the Logo prepared by Bouchat, without ever sending him the letter or the helmet. Bouchat has filed several lawsuits against the ravens and other related parties: In the first suit, he sued for infringement, seeking ten million dollars in damages. The court found that the use of the Logo infringed Bouchat’s copyright, but denied him the damages he was arguing for. Further litigation concerned more claims regarding damages, claims against NFL licensees, and the display of the Logo in season highlight films and in the Ravens’ corporate lobby.

In this suit, Bouchat seeks to enjoin the defendants from using the Logo incidentally in videos and photographs: three videos which appeared in the NFL network and several websites and the use of pictures with the Logo in historical exhibits located at a stadium. The district court found that the use by the defendants was “fair use”, mostly because it found that the use was “transformative”.

The first video featured a recount and analysis in short segments of the ten best NFL draft classes of all time. The video features a four minute segment on the Ravens. In two spots in this four minute segment, the Logo is visible for less than one second: once on a banner and a helmet at the opening of the segment and again on the side of a helmet.

The second video featured a recount and analysis in short segments of the ten least successful NFL draft classes of all time. This relevant segment of the video does not even relate to the Ravens, but to a player drafted by another team. The end of the segment shows a tackle, and it is possible to
catch a glimpse” of the Logo on a helmet, for a “fraction of a second”.

The third video is a collection of footage and audio of a former Ravens’ player. In this twenty four minute video, the Logo is visible for 8 seconds and twice later, visible for less than one second.

Bouchat argued (among other things) that the use cannot be fair use, since it is not transformative: the Logo is used to identify Ravens players. He further argued that even if the use is transformative, it should be weighed against the commercial nature of the use and the other fair use factors. The District Court found that all the alleged infringements were fair use.

Fair use, codified in 17 U.S.C. §107, is an exception which allows the use of a copyrighted work without the consent of the copyright holder. In determining whether the use is fair, §107 lists four factors to be considered: (1) the purpose and character of the use, including if the use is commercial or not; (2) the nature of the copyrighted work; (3) the amount used; (4) the effect of the use upon potential markets. Fair use has been described as “the most troublesome in the whole law of copyright”. Some scholars have argued that it is unpredictable, while others argue that the outcome can be foreseen. The Supreme Court has changed its approach to the application of the doctrine in the Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) decision. Prior to the Campbell decision, the Supreme Court put the emphasis in the fair use analysis on the fourth factor: the effect on potential markets. The Campbell court placed greater emphasis on the first factor and adopted the “transformative” test: does the use add something new? Does it “employ the quoted matter in a different manner or for a different purpose from the original, thus transforming it”?

Due to the importance of the first factor of the fair use test, the Circuit Court’s analysis focuses almost entirely on the “transformative” analysis and the possible commercial nature of the use. The Court found that the use of the Logo in the videos was different from its original purpose. The Court found that the use of the Logo was for the purpose of historical record and not as a brand symbol for the team, which was its original purpose. This is an interesting aspect of fair use, which does not change the original work, but places it in a different context (similar cases in the past included the use of Grateful Dead event posters in a book about the band, in Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2d Cir. 2006), and a case involving publishing explicit photos of Miss Puerto Rico in a newspaper, without the photographer’s consent, in Nunez v. Caribbean International News, Corp. 235 F.3d 18 (1st Cir. 2000)). The Court further concluded that the brief time in which the logo was shown also reinforces the finding of transformative use. The Court ruled that in two of the videos, the logo cannot even serve as an identifier of the Ravens players. The only video that does feature it for a long enough time (less than ten seconds), also portrays extensively the current Ravens logo, which is now used to identify the Ravens players. The Logo does not serve its original purpose anymore, and therefore the use is transformative.

After finding the use to be transformative, the Court turned to consider the commercial nature of the use, also included within the first factor. However, as the Supreme Court in Campbell warned, the courts should not over-emphasize the impact of this factor. Many activities which are meant to be protected by §107 are generally conducted for profit, but that does not negate a finding of fair use. This “commercial” inquiry is relevant when the work in question serves as a direct substitute to the copyrighted work. The Court found that the substantially transformative nature of the use and the limited nature of the use weigh against placing significant weight on the commercial nature.

Once the Court reached the conclusion that the use was transformative, the analysis for the rest of the factors was done very concisely. It is worth noting, that the finding of a use as transformative also reflects on the rest of the analysis, as the Court found that the third and fourth factor carry very little weight in light of the transformative nature of the use.

After completing its analysis, the Court went on to explore the rationales that justify fair use, quoting the famous line from Harper & Row, Publishers, Inc. v. Nation Entrs., 471 U.S. 539 (1985): “…the Framers intended copyright itself to be the engine of free expression”. An interesting point is that, although the Court chose to quote the Harper court on this matter, the Harper decision placed the fourth factor of fair use as the most important. As explained above, the Campbell court took the stand that the first factor, and specifically the “transformative” part of it, is of the greater importance, a stand which the Court in this case adopted completely.

The Court went on to describe the importance of fair use in allowing free speech and especially enabling film makers to document historical events (even if they are just “best drafts of the NFL”) without having to negotiate with every potential copyright owner who may choose to withhold consent or demand unreasonable licensing fees. One example is of a company wishing to avoid bad publicity by banning use of its logos in a critical film about it. The Court also went on to conduct a similar analysis on the other alleged infringement, and reached a similar conclusion.

This case joins a line of cases, which found “transformative” use even when the copyrighted work was used in its entirety, unchanged, but in a different context. The Court’s rationale weighs heavily in favor of broader expression and granting future creators the ability to produce their works with less fear from infringement claims. While the facts in this case may be a little extreme, considering especially the “fleeting” time in which the copyrighted work was displayed, the Court still produced some valuable and substantial comments regarding the proper balance between keeping the rights of copyright holders and providing adequate space for free expression.

 

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Google v. Vederi: Street View Aims For the Supreme Court

Are you curious to know what a certain address or location looks like in frontal or perspective view? So are the one billion regular users of Google’s Street View, a component of Google Maps that allows users to virtually navigate through 360° views and panoramic images of streets. Yet, Street View is also controversial. Since launching the feature in 2007, Google has been embroiled in privacy lawsuits from individuals, and from thirty-eight  U.S. states and the District of Columbia. However, in recent years, companies have sued the tech giant, claiming that Street View infringed on their patents. Google seems determined to see the patent infringement claims filed by Vederi, LLC, through to the Supreme Court, and is presently awaiting a decision for grant or denial of writ of certiorari.

The Lawsuit

In October 2010, Vederi filed a suit against Google for patent infringement. The asserted claims from Vederi’s four patents all derived from the same specification. During the claim construction hearing, the parties proposed different constructions of a claim limitation that included the expression “the views being substantially elevations of objects.” While Vederi asserted that the court should take the expression to mean “front or side views” of objects, Google argued that the court should narrowly read the phrase as “vertical flat (as opposed to curved or spherical) depictions of front or side views” of objects. The district court adopted the latter construction, distinguishing Street View’s spherical panoramas from Vederi’s flat views, and granted summary judgment in favor of Google.

The Court of Appeals for the Federal Circuit (CAFC) later held that the district court had erred in its interpretation of “images depicting views of objects in the geographical area, the views being substantially elevations of the objects,” and overturned the district court’s decision. The CAFC concluded from the claim language, specifications, and prosecution histories that  “images” encompassed “spherical and curved” representations, and rejected Google’s argument that Vederi had disclaimed “spherical and curved” images to avoid prior art during prosecution. Google petitioned for a rehearing en banc, which the CAFC denied.

Standards for Claim Construction

Claim construction (“Markman”) hearings are a crucial step of any patent infringement action because the judge-rendered interpretation of terms and words helps delineate claim scope and the patentee’s rights.

The CAFC has held that words in a claim should be read according to their “ordinary and customary meaning,” which is the interpretation that a “person of ordinary skill in the art” would give at the time of the invention. A court can determine such a meaning by consulting intrinsic evidence (the claim language, the specification, and the prosecution history) and extrinsic sources (“expert and inventor testimony, dictionaries, and learned treatises”). The prosecution history “limits the interpretation of claims so as to exclude any interpretation that may have been disclaimed or disavowed during prosecution in order to obtain claim allowance.” The CFAC has also cautioned that to obtain a dependable interpretation of patent claim scope, courts must examine extrinsic evidence “in the context of the intrinsic evidence.”

The Supreme Court has recently held that appellate courts must review claim construction based on intrinsic evidence de novo, but must defer to the trial judge’s resolution of “subsidiary factfinding” such as extrinsic evidence, unless the judge has made a clear error.

The Pending Petition

In its petition for writ of certiorari, Google requested that the Supreme Court clarify:

Whether, when an applicant for a patent amends a claim to overcome the Patent and Trademark Office’s earlier disallowance of the claim, a court should (i) presume that the amendment narrowed the claim and strictly construe the amended claim language against the applicant, as this Court has held; or (ii) presume that the claim scope remained the same and require that any narrowing be clear and unmistakable, as the Federal Circuit has held.

Google compared CAFC and Supreme Court cases to argue that although the Supreme Court’s stance was to “strictly construe” such claims amendments “against the inventor and in favor of the public,” the CAFC “repeatedly” espoused an opposing view. Google insisted that by requiring a “clear and unmistakable” disclaimer of the original claim scope, the CFAC enabled patent applicants to have it both ways, i.e. obtain a patent with narrowed claims while retaining the right to assert a broad claim scope in litigation. Google contended that the CAFC’s standard “undermine[d] the integrity” of the PTO’s examination process, and impeded clarity in prosecution by promoting “gamesmanship by patent applicants and overbroad claim constructions by courts.”

 

Vederi discounted Google’s claims in an opposing brief, contending that neither the CAFC examples Google provided, nor the present case were inconsistent with Supreme Court decisions cited in the petition. Vederi asserted that the amendment of “non-aerial view of objects” to “views being substantially elevations of objects” distinctly narrowed the claim scope, which was not recaptured by the CAFC’s claim construction. Further, Vederi rejected Google’s assertions that the CAFC used a “clear and unmistakable” standard to determine the scope of the prior-amended claim.

What Lies Ahead

As evidenced by the amici brief filed in support of Google’s petition for writ of certiorari, there is a call for the Supreme Court to reaffirm the necessity of reviewing all of the intrinsic evidence, including prosecution history, when construing claims. The nine amici, which include Dell, EBay, and QVC, contend that the CAFC’s “clear and unmistakable” standard departs from the Supreme Court’s precedents, gives “overbroad interpretations to patent claims,” and should therefore be addressed.

Legal commentators have stated that in addition to encouraging vague and ambiguous claims that compromise the character of the PTO’s prosecution procedure, the CAFC’s “clear and unmistakable” standard undermines the “public-notice function of claims”, and violates Nautilus’s requirement that claims be “reasonably clear.”

On January 12, 2015, the Supreme Court called for the view of the Solicitor General on whether Google must defend the claims of patent infringement. While Google abandoned Street View in Germany due to persistent privacy lawsuits, it remains uncertain whether U.S. users may have to bid adieu to the feature because of patent infringement issues.

 

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Julia Angwin Attempts to Remain Anonymous Online and Proposes that We Reconsider Privacy Rights as Human Rights

On February 19, 2015, journalist Julia Angwin presented on her recent project as part of the BCLT Lunch Speaker Series. Angwin built her reputation as an investigative journalist in the world of privacy issues when she led a Wall Street Journal series called What They Know. She has also written two books, the latest of which, Dragnet Nation: A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance, was the subject of her talk.

In today’s world, it seems no secret that parties are selling our data and the government is surveilling our behavior. The “free” apps we download on our smartphones are paid for by third parties who buy our data from the developers. Maybe users don’t have a problem with programs using the data necessary to run the app, but the situation might be more disturbing than people realize. First, the developers might be mining more data than necessary to run the apps. Second, the Snowden papers revealed that giant data aggregating companies like Google might have to turn over their data upon a secret request. Even worse, when the government can’t get access to the data they want from these companies, there is evidence that they can break into the servers to access the data without formally requesting it.

With all this in mind, Angwin sought to discover exactly what she could do to prevent the collection of her data; how could she evade surveillance in a world with pervasive tracking? Dragnet Nation illustrates Angwin’s quest for online privacy. Angwin used a plethora of techniques to try to remain anonymous. First, she quit using Google, and instead used a service called DuckDuckGo. She disconnected her LinkedIn and deleted all her friend connections on Facebook, leaving only a shell of a profile page to indicate that she was no longer using the service.

Through this process, Angwin encountered a few unexpected hurdles. For example, she created a new identity, taking the name of famous muckraker Ida Tarbell, responsible for exposing the abuses of the Standard Oil Company in the early twentieth century. (Angwin consulted a lawyer to make sure all her activities using this new name was legal.) Angwin emphasized that she simply wanted a way to conduct activities in public without using her real name. She soon abandoned this quest, however, partly because a friend reminded her that companies work by tracking behavior; because she hadn’t changed her patterns, it was actually easy for a company to link Ida’s activities with Angwin’s. She also had a hard time figuring out how to handle her phone. She tried just turning it off, but after hearing that the CIA can track phones even when turned off, she purchased a faraday cage to stop all signals to and from her phone.

She also tried to find an encrypted email service, but could only find one; Rise Up is a service run be a Seattle-based anarchist collective. Since the service was funded by donation, she would have to remember to download all her emails if she wanted to save them because the site would occasionally drop out. To save all this data, she signed up for an encrypted cloud service called SpiderOak. This service alone cost her $200 per year, which made Angwin realize that she was paying a significant amount of money for all these tools to shield her data.

In one year, Angwin totaled that she spent over $2,500. She also noted that this was likely on the low side of what it would cost for privacy protection, because she employed as many low cost services as possible. There are probably many services that can provide even more protection, but the prices start to spike. This made Angwin wonder: is privacy becoming a luxury good?

Angwin concluded that privacy is actually a fake luxury good – at the end of the day, she couldn’t even truly secure her privacy. In order to truly minimize any data collection, she would have to take steps such as convincing friends to also use encryption so as not to undermine her efforts, finding better security measures for her cell phone, and better identifying and avoiding data brokers who were still able to collect her data after all her efforts.

Against the backdrop of these struggles, Angwin came to realize that perhaps she wasn’t looking for privacy, but rather for assurances. She described the problem as a feeling of lack of control. “The more data is collected,” Angwin explained, “the more hopeless people feel. They don’t feel like they have the ability to do anything about it.” She proposed that society could address this problem by considering privacy rights as broader human rights over our data – the right to control what is collected and how it is used in a way that still allows us to use the amazing technology that pervades the market today. If we were able to recharacterize the way we think of privacy rights, this could allow the internet industry to innovate towards giving individuals the assurance they seek when using online services. Angwin’s story is proof that even money can’t buy perfect privacy – the solution will have to come from shifting the paradigm of what society expects will be done with our data.

For more information on Julia Angwin, see http://juliaangwin.com.

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Potential Copyright Dispute Between Bestselling Authors

In the midst of its recent film release, 50 Shades of Grey is raising eyebrows for a new reason: possible copyright infringement.  News outlets have begun to question whether the author of the best-selling Twilight series, Stephenie Meyer, ultimately holds the copyright to 50 Shades of Grey, written by E.L. James.  The issue turns on what constitutes a derivative work.

The novel 50 Shades of Grey originated as Twilight fan-fiction under the title “Master of the Universe.”  E.L. James, a pseudonym for Erika Mitchell, borrowed the characters of Edward and Bella from Twilight, set them in a city as humans, and created new escapades to chronicle.  “Master of the Universe” garnered an enormous following, which led Vintage Books, a subsidiary of Random House, to enter into a book deal with James.  100 million copies later, and with changes to the setting and characters’ names, 50 Shades of Grey is now one of the top 10 best-selling books of all time.

The problem is that 50 Shades of Grey is eerily similar to “Master of the Universe,” which was explicitly based on the Twilight characters.  One writer used plagiarism-checking software Turnitin to compare a passage of “Master of the Universe” with 50 Shades of Grey and found that the similarity index was 89%.  In fact, for much of the text it appears that the only differences were in the names of the characters.

Copyright protection

Section 101 of the Copyright Act dictates that a derivative work is based on “one or more preexisting works,” such as a motion picture version of a novel.  Meyer, the author of Twilight, has the original copyright of the series.  This means that, in general, Meyer owns the Twilight characters.  By extension, Meyer also holds the exclusive right – the “derivative right” – to prepare and authorize others to prepare derivative works based on her original novel under § 106(2) of the Copyright Act.  That is, Meyer controls the extent to which the Twilight characters may emerge in subsequent works.

“Master of the Universe” appears to fit under the definition of a derivative work, as its characters are drawn directly from the Twilight series.  When a derivative work is created without the permission of the copyright owner, “copyright protection will not extend to the work in which such material has been used unlawfully,” writes the United States Copyright Office, and “the unauthorized adaption may constitute copyright infringement.”  Applied to the present matter, when material from Meyer’s series Twilight is used without her permission to create a new work, the subsequent author (e.g. James) may not be able to obtain a copyright for the new work (e.g. “Master of the Universe” or, by extension, 50 Shades of Grey).

Potential litigation

There is “widespread disagreement about how far the derivative work right reaches,” as the Washington Post notes, so it is unclear whether a federal court would hold that James’s 50 Shades of Grey – a derivative work of James’s own “Master of the Universe” – qualifies as an unauthorized derivative work of Meyer’s Twilight.  While Meyer has not granted permission for James to create a derivative work from Twlight, she has not yet initiated any public litigation directed at the 50 Shades of Grey series.  Still, because Meyer’s copyright lasts for her lifetime plus 70 years, James and her heirs may face litigation down the road.

Fair Use

The Fair Use doctrine provides an affirmative defense to copyright infringement claims like the one that Meyer might allege.  This doctrine permits limited use of a copyrighted material without the permission from the copyright holder.  In determining whether a subsequent work is permissible under the Fair Use doctrine, Section 107 of the Copyright Act requires courts to consider four factors: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

Under this doctrine, parodies and critiques often defeat copyright infringement claims because they sufficiently “transform” the original work in such a way that it may serve a new purpose.  James would likely argue that 50 Shades of Grey transforms Twilight completely, with a whole new set of characters, settings, and plot lines.  Without knowing that “Master of the Universe” was created in between the two, this argument might seem convincing.  Through all of the forthcoming sequels and new onslaught of fan-fiction, the potential for litigation remains uncertain.

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Here Comes Another One: Examining the Home Depot Data Breach Lawsuit

40 million; the number of credit and debit card numbers stolen in the Target data breach of 2013. 200 million; the number of dollars credit unions and community banks spent reissuing only half of them. 1-3 million; the estimated number of these cards’ data successfully sold on the black market and fraudulently used before their issuing banks cancelled them. 5; the number of months ‘clandestine’ malware on Neiman Marcus systems operated and stole newly issued credit card information. 47; the percentage of world credit/debit card fraud that takes place in the United States. 18; the number of people, on average, whose stolen credit or debit card information just made them victims of identity theft before you even finished reading this paragraph.

Data breaches like Target and Neiman Marcus have prompted numerous consumer lawsuits against companies alleged of not doing enough to protect collected information about their customers. The effect of the media coverage over these data breaches combined with legislator concern and filed complaints has thrown the issue of consumer data protection into the spotlight.

One such lawsuit was filed on September 24, 2014 as Shonna Earls and John Holt Senior filed a class action against The Home Depot, Inc. in the U.S. District Court for the Northern District of California. The complaint alleges breaches of the California Customer Records Act as well as a violation of the California Unfair Competition Law among allegations of negligence on the part of Home Depot in managing recorded information.

The Breach

Home Depot confirmed that on September 18, 2014, 56 million credit and debit cards were exposed by hackers in the breach. The data stolen apparently centered on customer information recorded by the stores’ payment card systems which tracked the magnetic strip of the cards swiped and included customers’ names, card numbers, expiration dates, and CVV security codes. This type of information was also the targeted information in the Target and Neiman Marcus breaches. The popularity of this information among hackers comes from the ability to use this information to create new cards or make fraudulent purchases over the internet.

Home Depot has also confirmed that 53 million emails of customers were stolen in the hacks too. Home Depot has warned customers that this information could potentially be used in phishing scams online when hackers pose as Home Depot giving away gift cards or the like to trick consumers into disclosing personal financial information.

KrebsOnSecurity reports that the hack happened due to a variant of the “BlackPOS” (a.k.a. “Kaptoxa”), a malware strain designed to siphon data from cards when they are swiped at infected point-of-sale systems running Microsoft Windows. This was similar to the methodology used in the 2013 Target data breach. The investigation has yielded information that the attackers broke into Home Depot’s network on Nov. 15, 2013 using network credentials stolen from Fazio Mechanical Services a third-party provider of refrigeration and HVAC systems.

The New York Times has covered accusations from former employees who said that Home Depot was slow to install updated security mechanisms to prevent the breach in the first place. Furthermore, former employees wondered whether Home Depot did not meet industry standard guidelines for securing credit and debit card data – attributing the extent of the breach to lax security measures.

The Fallout

Following the news of the breach, multiple financial institutions reported a steep increase in fraudulent ATM withdrawals on customer accounts. Home Depot estimates the breach will cost the company $62 million. Higher estimates are projected by some sources whereas the breach cost Home Depot $43 million in the third quarter of 2014 alone. Those same sources point to the 2013 Target breach costing upwards of $1 billion.

In addition to the Earls lawsuit, there are also 43 additional civil suits being filed against Home Depot across the United States.

In addition to the security upgrades and legal costs, Home Depot informed customers that it would be providing free identity protection services to anyone who used their cards at Home Depot in 2014.

Shareholders have expressed concern that news of the breach may hurt Home Depot’s stock price looking at the 14% drop in Target’s price only a couple months out from news of its breach in 2013. However, according to Google Finance, Home Depot’s stock value has actually increased to close out the year nearly 12 points higher than in September when the news was announced.

The Lawsuit

Shonna Earls personally incurred $543.95 in unauthorized charges in September, 2014 after using her credit card at her local Home Depot. John Holt Sr. was notified by his bank that fraudulent activity was taking place on his debit card that he had recently used at Home Depot. The two plaintiffs are named in a nation-wide and California-wide class action suit.

The complaint alleges Home Depot violated multiple sections of California law by failing to implement reasonable security procedures and practices to protect consumer credit and debit card information. Additionally, the complaint alleges Home Depot violated California law by failing to promptly notify class members that their personal information had been compromised.

California Civil Code § 1798.80 requires any business that owns or licenses personal information about a California resident to maintain reasonable security procedures appropriate to the nature of the information. The complaint alleges that Home Depot violated this section by keeping customers’ personal data within its custody longer than necessary and by failing to properly and adequately dispose or make customers’ data undecipherable.

The complaint further alleges Home Depot violated California Civil Code § 1798.82 by failing to promptly notify all affected Home Depot customers that their personal information had been exposed by hackers.

The second cause of action alleges that Home Depot violated California Business and Professions Code § 17200 by failing to take reasonable security measures to protect its customers’ data, and because they didn’t notify customers of the breach in a timely manner. It further alleges that Home Depot engaged in unfair business practices and conduct that undermines or violates the stated policies underlying the California Customer Records Act.

The third cause of action alleges that Home Depot owed Plaintiffs and members of the class a duty to exercise reasonable care in safeguarding and protecting that information – a duty underscored by the California Customer Records Act. Plaintiffs allege that timely disclosure was necessary to alert plaintiffs and allow them to, among other things, monitor their bank accounts, undertake appropriate measures to protect their identify and avoid unauthorized charges, and otherwise prevent or mitigate the risk of fraudulent cash withdrawals or unauthorized transactions.

The class requests that Home Depot submit itself to a third-party security audit and testing regimen, update its data security policies, destroy all non-necessary customer information, better educate its personnel on the need for data security, and better educate its customers about the risks they now face in light of the breach and how they may protect themselves.

The Adventure Continues

The Earls lawsuit is just the latest chapter in the saga of retail data breaches and the public prioritization of consumer information privacy. Former employees have filed a lawsuit against Sony over the recent hack by the “Guardians of Peace”. On December 4, 2014, U.S. District Judge Paul Magnuson ruled to allow a lawsuit by financial institutions against Target for allowing their computer systems to be breached to proceed. In January, Nieman Marcus was hit with a proposed class action lawsuit in federal court seeking to hold the retail chain accountable for separate data breaches that put customer payment information at risk. The Michaels craft store chain was hit with a similar lawsuit by Michael and Jessica Gouwens in Illinois alleging the retailer has failed to sufficiently step up security measures following a three-year-old security breach.

Responses to recent data breaches are not limited to judicial action. In the wake of the 2013 Target data breach, ranking members of Congress called for committee hearings to explore how to better protect consumers and ensure private companies are held accountable for failures to secure their customers’ data. This is reflective of polling information that indicates stolen credit card information tops the list of crimes Americans worry about the most. The public conscience, legislative priority, and judicial focus are all fixed upon how to secure consumers’ information in the twenty-first century. Regardless of the outcome of any single case, the issue remains. While the twenty-first century may be the century of big data; the courts, federal and state officials, and the general public will also take measures to ensure it is also the century of big data protection.

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Could Your Technology Be Incriminating You?

Earlier this week, we wrote about how the government can lawfully compel a person to unlock their smart phone with the Touch ID feature (if the feature is enabled). Recently, Fitbit has been in the news because the popular fitness tracker device is being used as evidence in a Canadian civil court in a personal injury lawsuit. According to Forbes, in this landmark case, Fitbit data was volunteered by the owner of the device (the plaintiff) to support a claim that her activity level had decreased following an alleged injury.

This, one again, raises issues about the juncture between modern technology and consumers’ Fifth Amendment rights. So far, it appears that Fitbit data, or data from other wearable devices, have not been subpoenaed or used against the will of the device’s owner in the United States (or Canada). However, this case has opened Pandora’s box to the question of technology and self-incrimination.

 

What does this Mean for Tech Users?

Let’s say that you are accused of robbing a bank. There is no evidence against you, and your alibi is that you were at home taking a nap at the time of the crime. A judge may be able to compel you to produce your wearable technology to account for your heart rate at the time of the crime. In this case, elevated heart rate would equal incrimination.

 

What’s Next?

Some savvy prosecutor or plaintiff’s attorney may attempt to compel the production of wearable technology data in the near future. Using the analysis from the previous blog post on this topic, the pertinent question will be whether the production of data from one’s wearable technology is a “testimonial communication.” If producing one’s Fitbit, for instance, is not a testimonial communication, than the wearer may invoke her Fifth Amendment privilege against self-incrimination to stop production (or use) of the data in court.

 

For more information on this topic see coverage from Forbes and The Atlantic.

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Aereo’s Next Chapter in Bankruptcy

On the heels of a business-crushing Supreme Court decision, television-streaming giant Aereo announced in November that it would be filing for Chapter 11 bankruptcy.  Founded in 2012 with nearly $100 million in venture funding, the company allowed users to live-stream 30 different television channels for a low monthly subscription fee.  Aereo accessed these networks through its own micro antennas, which pulled the signals necessary for re-broadcasting from the television channels’ nearby towers.

The parent companies of the effected networks  – ABC, CBS, NBC, and Fox – initiated a civil suit in the Southern District of New York in 2012.  The broadcasters alleged that Aereo violated federal copyright law by failing to pay retransmission fees, which generate a significant portion of the networks’ revenues.  In response, Aereo argued that its technology is no different from a TV antenna on an individual user’s roof that connects to the TV through a wire; here, the wire connecting the antenna with the TV is the internet.

The Copyright Law of 1976 provides a copyright holder with the exclusive right to “perform the copyrighted work publicly.”  In other words, the copyright holder is the only body permitted to “transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process . . .”  As the networks note in their briefs, Congress enacted this provision in order to “bring within the scope of the public performance right” the retransmission of television broadcasts – ultimately, to protect the networks’ content.

The Litigation

In the early stages of the litigation, it looked as though Aereo might prevail.  The District Court ruled in Aereo’s favor, first denying the broadcasters’ request for a preliminary injunction and later denying their motion for summary judgment.  The Second Circuit then affirmed the lower court’s rulings, relying on Aereo’s technological make-up in its decision.  The Second Circuit reasoned that Aereo did not violate the federal copyright law because each customer viewed a unique copy of a broadcast, obtained through that customer’s specific micro antenna.  In this way, Aereo was engaged in thousands of “private” performances rather than the prohibited “public” ones.

The broadcast networks filed their petition for writ of certiorari in October 2013, asking the Supreme Court to decide whether a “company ‘publicly performs’ a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.”  Aereo also urged the Supreme Court to take the case.  The company reasoned that, as its business grew, one wide-reaching decision would be better than a variety of different rulings throughout the country. The Supreme Court swiftly decided to take up the issue in January 2014 and held oral arguments in April.

On June 25, 2014, the Supreme Court reversed the Second Circuit’s ruling and held 6-3 that Aereo violated the Copyright Act’s Transmit Clause because it “publicly perform[ed]” the networks’ copyrighted works.  The Court found that Aereo was doing more than acting as the “wire” that connects the antenna to the television; it was functioning “substantially similar[ly]” to a cable system and, thus, needed to obtain the networks’ permission to transmit their content. The majority decision was delivered by Justice Breyer, joined by Justices Ginsburg, Kagan, Kennedy, Roberts, and Sotomayor.  Justices Alito and Thomas joined Justice Scalia in his dissent.

“Viewed in terms of Congress’ regulatory objectives, these behind-the-scenes technological differences do not distinguish Aereo’s system from cable systems, which do perform publicly,” the decision reads. “Congress would as much have intended to protect a copyright holder from the unlicensed activities of Aereo as from those of cable companies.”  In the same breath, the Court took care to note that this ruling was specific to Aereo and should not impact other emerging technologies.

In a statement following the ruling, Aereo’s CEO Chet Kanojia lamented that the Court’s ruling is a “massive setback for the American consumer” and that it sends a “chilling message to the technology industry.”  He explained that Aereo “worked diligently to create a technology that complies with the law,” but, unfortunately, the Court’s ruling made it clear that “how the technology works does not matter.”  On the other hand, the CEO of the National Association of Broadcasters, Gordon Smith, explained that he was “pleased” that the Court upheld the idea of copyright protection that is “enshrined in the Constitution” by siding with the television channels.  He sees Aereo’s argument that the broadcasters were simply attacking its innovation as “demonstrably false.”

Three days after the Supreme Court decision, Aereo suspended its streaming service.  Meanwhile, broadcasters such as CBS have moved forward with plans to allow consumers to live-stream programs on the internet.

Bankruptcy

As Aereo CEO Kanojia explained in the company’s Chapter 11 announcement (appropriately entitled “The Next Chapter”), the June Supreme Court decision “effectively changed the laws that had governed Aereo’s technology, creating regulatory and legal uncertainty.”  Despite Aereo’s best efforts at circumventing this decision, “the challenges have proven too difficult to overcome.”  The CEO expects that Chapter 11 will allow Aereo to “maximize the value of its business” without the expense of protracted litigation.

When businesses are unable to service their debt, Chapter 11 permits them to undergo reorganization under Title 11 of the U.S. Bankruptcy Code.  Unlike in Chapter 7 where businesses cease operations, Chapter 11 debtors usually remain in control of their operations under the supervision of the court.  Companies have several mechanisms at their disposal as part of the restructuring process, including acquiring loans with favorable terms and canceling existing contracts.  Most importantly in the case of Aereo, companies who file for Chapter 11 bankruptcy benefit from an automatic stay, which halts pending litigation and prevents creditors from attempting to collect on their debts.

Aereo appointed Lawton Bloom of Argus to serve as the Chief Restructuring Officer, responsible for guiding the company through liquidation or restructuring. The company has already laid off 74 employees, leaving just 14.  In its papers filed with the court, Aereo claimed to have approximately $20.5 million of assets and to owe about $4.2 million of debts.  Aereo’s CFO Ramon Rivera explained that using Chapter 11 to gain protection from creditors would provide the “necessary breathing room” for Aereo to plot out next steps.

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The Right of Publicity: Likeness Lawsuits Against Video Game Companies

What do actress Lindsay Lohan, former Panamanian dictator Manuel Noriega, and U.S. World War II General George S. Patton have in common? Each is involved in a right of publicity lawsuit brought against video game companies earlier this year. Lohan, Noriega, and Patton’s estate have each filed lawsuits alleging that certain video game characters illegally use their likeness and identity without permission. Before discussing the individual facts of each of these cases, it is important to understand the basics of the right of publicity.

The right of publicity varies from state to state. As seen from California’s right of publicity statute, Cal. Civ. Code § 3344, any “person who knowingly uses another’s voice, signature, photograph, or likeness, without such person’s prior consent, shall be liable for any damages sustained by the person injured.” In 1992, the Ninth Circuit in White v. Samsung Electronics America, Inc. stated that, in bringing a right of publicity claim, one must show (1) the defendant’s use of the plaintiff’s identity, (2) the appropriation of the plaintiff’s name or likeness to the defendant’s advantage, (3) the plaintiff’s lack of consent, and (4) the plaintiff’s injury. In this case, Samsung released an advertisement that depicted a robot standing in front of a Wheel of Fortune board, wearing a blond wig, a gown, and jewelry, which was made to resemble Vanna White. Addressing Samsung’s argument that it did not use White’s actual name or person, the court held that White had a valid claim because “the common law right of publicity reaches means of appropriation other than name or likeness [alone].” The court noted that this right was designed to protect celebrities from the unauthorized commercial exploitation of their identity. However, the extent and strength of this right is hotly debated.

In July 2014, Lindsay Lohan filed a lawsuit in a New York state court against Take-Two Interactive and Rockstar Games, the creators of Grand Theft Auto V. Lohan alleged that an in-game character, Lacey Jonas, as well as promotional art and other merchandise depicting a young blond woman, use her image, likeness, and voice without her permission. In Grand Theft Auto V, Lacey Jonas is a blond celebrity who asks for your assistance in escaping from the paparazzi, during which she discusses the burdens of being famous. Lohan argued that the character’s image, voice, and clothing were very similar to her own, and that Rockstar Games, in designing the game’s promotional art, used a “look-alike model to evoke the persona and image” of Lohan in order to profit from her fame. Thus, Lohan alleged that such use falls squarely under her right of publicity and that these video game companies have commercially exploited her identity without her permission.

In the same month, former Panamanian dictator Manuel Noriega, who is currently serving a two decade prison sentence for drug trafficking, money laundering, and killing political opponents, filed a lawsuit in California against Activision Blizzard, the creator of Call of Duty: Black Ops II. Differing from Lohan’s situation, this game unambiguously includes Noriega as a character and even features a mission to capture him. Noriega argued that his portrayal “as a kidnapper, murderer and enemy of the state” damaged his reputation, and that the use of his image and name entitles him to a share of Activision Blizzard’s profits. In October 2014, a California court dismissed Noriega’s lawsuit, stating that “Noriega’s right of publicity is outweighed by defendants’ First Amendment right to free expression.” Interestingly, former New York mayor, Rudy Giuliani, spoke out in defense of Activision Blizzard, arguing that, if Noriega’s lawsuit was not dismissed, “[p]ublic figures, good ones, bad ones, who are included in books, movies and video games, all of these [people] would have a right to sue.”

There have been other of instances of similar lawsuits, such as one filed by the estate of George S. Patton against Maximum Family Games for the use of the WWII General in one of its games, as well as a successful case brought by Ryan Hart, a college football player, against Electronic Arts, Inc. for his portrayal in EA’s NCAA Football video game series.

Together, these cases shed light on the strengths and limits of the right of publicity. In Hart v. Electronic Arts, Inc., it was the fact that EA did not “sufficiently transform” Hart’s identity or appearance that contributed to the Third Circuit’s holding in favor of Hart. As the court stated, this “Transformative Use Test” helps dictate the balance between a video game publisher’s right of expression under the First Amendment and a celebrity’s right of publicity. The Third Circuit held that, because the “digital Ryan Hart [did] what the actual Ryan Hart did while at [college]: he play[ed] football, in digital recreations of college football stadiums, filled with all the trappings of a college football game,” this use was meant to be highly realistic and was not transformative. Because this use was not transformative, it was clearly an unauthorized appropriation of Hart’s identity for commercial profit.

Given this holding, it will be interesting to see, if Noriega appeals, how a California appellate court will deal with transformative use factors and First Amendment concerns. Although the digital Noriega is visually realistic and was a CIA informant, like Noriega was in real life, there may be transformative aspects in that the in-game character engages in fictional dialogues and events. Some, like Giuliani, fear that this “absurd” lawsuit will allow countless historical and famous figures to unjustly halt many films, books, and other works of art, impeding creative progress and free speech. The Lohan case presents an additional layer of complexity, in that the in-game character may not even be found to use Lohan’s identity and likeness. An analysis of the similarities between the in-game character and Lohan will be required before fully proceeding to a discussion of the balance between publicity rights and free speech. Through the medium of video games, these cases illustrate a growing tension between First Amendment concerns and celebrity publicity rights and have the potential to seriously affect future creative works, privacy rights, and free speech.

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Federal “Catfishing”: When Government Impersonation through Social Media Gets Caught

You rush into work one morning, coffee and briefcase in hand, barely making it into the cramped elevator as the doors close. You overhear someone in the back whisper “That’s her, she’s the one in the tank top in her profile pic.” You wonder who they’re gossiping about but are too preoccupied on your 9:30 presentation to care. After a successful presentation, your boss pulls you aside and offers a friendly reminder to be aware of how people might see a Facebook profile or Twitter post to be a reflection on the character of the company. You’re slightly puzzled, as it seems to be coming out of nowhere, but just nod and smile and thank him for the reminder. At lunch, your co-worker comes up and says how cute your son and niece look in the pictures you posted online last night. You ask her what she’s talking about since you don’t remember posting anything. Her only reply is that it was on your Facebook profile and thanks for adding her as a friend yesterday.

There’s only one problem – you don’t have a Facebook profile.

 

Arquiett v. DEA

This scenario is similar to what brought Sondra Arquiett to sue the Drug Enforcement Administration (“DEA”) for commandeering her identity and impersonating her for months through a fake Facebook profile. In the complaint, filed in the United States District Court for the Northern District of New York, Arquiett alleges that an agent of the DEA “appropriated [Arquiett’s] name and likeness to create a publicly available Facebook account that purported to be an account belonging to [Arquiett] . . . without [her] knowledge or permission.” The complaint further alleges that the DEA agent posted pictures belonging to Arquiett on the page including suggestive pictures of her in her underwear and others with her child and niece – both minors. The DEA agent additionally “utilized the Facebook page to initiate contact with dangerous individuals he was investigating with regard to an alleged narcotics distribution ring . . . [and] also initiated contacts with other persons known to [Arquiett].” Arquiett alleges that she suffered fear and distress from uncovering the impersonation because the DEA agent had, “created the appearance that Plaintiff was willfully cooperating in his investigation of the narcotics trafficking ring, thereby placing her in danger.” Arquiett is charging that this impersonation violated her constitutional rights to privacy afforded under the First Amendment, equal protection under the Fifth Amendment, and her Eighth Amendment right to be free from cruel and unusual punishment.

The U.S. Attorney’s Office acknowledges the events in Arquiett’s complaint that took place but argues that the use of the account was proper as it was “for a legitimate law enforcement purpose.” The government argues:

“Defendants admit that Plaintiff did not give express permission for the use of photographs contained on her phone on an undercover Facebook page, but state the Plaintiff implicitly consented by granting access to the information stored in her cell phone and by consenting to the use of that information to aid in an ongoing criminal investigations [sic].”

The district court has since approved mediation to resolve the issue and both parties are currently attending.

 

Prior use of Social Media by Law Enforcement

This wouldn’t be the first time a law enforcement agency has utilized social media in a criminal investigation. LexisNexis published a report in 2014 stating that eight out of ten law enforcement agencies utilized social media in criminal investigations. Although it is unclear to what extent law enforcement agencies create profiles impersonating real people (as opposed to creating profiles of fictitious individuals). Such investigations include a 2008 gang sting operation in Cincinnati, OH where 71 people were arrested following a data mining operation on Facebook.

 

No “Likes” for the DEA

After BuzzFeed News broke the story, Facebook removed the account and rebuked the DEA for its violation of Facebook’s community guidelines and demanded it cease all activities relating to fake profiles.

We ask that you refrain from publishing the personal information of others without their consent. Claiming to be another person, creating a false presence for an organization, or creating multiple accounts undermines community and violates Facebook’s terms.

Joe Sullivan, Facebook’s Chief Security Officer, commented in an October 2014 letter to the DEA that, “Facebook is deeply troubled by the DEA’s claims and legal position . . . Facebook has long made clear that law enforcement authorities are subject to these policies.”

In an interview with CNN, he also stated actions like these, “[undermine] the integrity of [Facebook’s] whole service if we allow people to use false accounts.

U.S. Senator Patrick Leahy, Chairman of the Senate Committee on the Judiciary, wrote a letter to U.S. Attorney General Eric Holder late last month condemning the DEA’s impersonation of Arquiett on Facebook and calling the DEA’s decision to post suggestive photos of Ms. Arquiett and pictures of her minor son and niece ‘appalling’ and ‘dangerous’. Leahy condemned the danger to Arquiett’s life the DEA incurred when they initiated conversations with known dangerous criminals impersonating Arquiett and then linking that to the pictures they posted of Arquiett’s son and niece. Leahy concluded:

I hope the Justice Department will agree that creating an online profile using an unsuspecting person’s identity to communicate with criminals is unethical, potentially dangerous, and should not be condoned by our nation’s law enforcement agencies.

 

This Isn’t Something New to the Internet

Impersonation isn’t anything new to social media. We all remember the infamous Manti Te’o scandal where the football star’s dead girlfriend turned out to be a hoax complete with her own Facebook profile.

Then there’s $616,165 fine the Federal Trade Commission leveled against JDI Dating last monthfor allowing users to create profiles on their sites for free and then send them fake messages from people who supposedly lived nearby and wanted to meet.

However, neither of these is as disturbing as the case of Megan Meier – the one that first drew national attention to the issue of online impersonation. Megan lived in Dardenne Prairie, MO and began an online friendship-turned-romance over her MySpace.com profile with Josh Evans. That was until October 2006 when Josh began being mean to her even to the point where he messaged Megan “The world would be a better place without you.” Megan hung herself in her bedroom closet. She was 13. It also turned out that Josh Evans never existed. A 47 year-old neighbor had been impersonating the profile the entire time.

This infamous case of “catfishing”, where someone impersonates being someone else over the internet often used to trick people into romantic relationships, prompted state legislatures across the country to create laws against this kind of fraudulent behavior. In California and New York, online impersonation is a misdemeanor. In Texas, it’s a third-degree felony.

Former California State Senator Joe Simitian commented that these laws were created to prevent harm from coming to individuals who fall victim to online impersonation – just like identity theft. “There are many kinds of harm . . . Emotional distress is a harm. Financial damage is a harm. When someone both steals your identity and damages your reputation, there ought to be consequences.

But what about when it’s the government doing the “catfishing”?

 

A Novel Question for the Courts

Anita L. Allen, professor at University of Pennsylvania Law School, protests to the use of fake profiles by government agencies as “misrepresentation, fraud, and invasion of privacy.” However, she also pointed out that Arquiett’s case presents a novel legal issue that has not yet been tested in federal courts – how far is too far when the government impersonates a real individual over social media without their knowledge or consent? Ryan Calo, a professor at the University of Washington School of Law, says that what separates this kind of deceptive behavior from others in which law enforcement agencies have engaged in the past is that this case is an instance where the government assumed the identity of a real individual as opposed to a fictional one. Neil Richards, also a professor at Washington University School of Law, agrees that “There are a whole bunch of new things that are possible [with social media], and we don’t have rules for them yet.

Allen also brings up the point that the government admits that Arquiett did not give her express permission to use the private photographs stored on her phone on social media. Allen analogies, “I may allow someone to come into my home and search, but that doesn’t mean they can take the photos from my coffee table and post them online.” Elizabeth Joh, professor at UC Davis School of Law, said that for the government to glean ‘implied consent’ for use of the pictures on social media absent any express permission to do so, “[is] a dangerous expansion of the idea of consent, particularly given the amount of information on people’s cell phones.”

In the era of mass privacy breaches of commercial retail chains and ex-patriots exposing NSA domestic spying programs; technology has allowed federally-sponsored “catfishing” to be added to the mix of privacy concerns. Maybe you should just call next time instead of sending that Facebook message. After all, the face behind the profile might not be the one you were expecting.

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