Tuesday, October 26, 2010

Recent Legal News

California Bans Malicious Online Impersonation (Computer World, 28 Sept 2010) - A new law makes it illegal in California to maliciously impersonate someone online. On Monday California Governor Arnold Schwarzenegger signed the law, which makes it a misdemeanor in the state to impersonate someone online for "purposes of harming, intimidating, threatening, or defrauding another person." The law is designed to crack down on cyber-bullying and would apply to cases like that of Elizabeth Thrasher, who was charged last year with posting a 17-year-old girl's photo, e-mail and mobile number to a Craigslist adult forum, following an argument. The law is not designed to prohibit parody or satire, but some worry that it could have a chilling effect nevertheless. "It could be used to put the lid on free speech," said Mike Bonanno a member of the Yes Men, a group that has made a career out of parodying powerful corporations. "Our impersonations are revealed almost immediately after we do them -- there is a net gain of information for the public: it is anything but fraud. But those facts may not stop corporations and their political cronies from using this law to attack activists who are truly exercising free speech," he wrote in an e-mail. The Electronic Frontier Foundation doesn't like the law either. Like Bonanno, EFF Senior Staff Attorney Corynne McSherry worries that it could give corporations and public officials a new way to sue their critics into silence. "We're disappointed that the Governor decided to sign this bill, given that it is likely to be used to squelch political speech," she said via e-mail. The law lets victims seek damages in civil court. Perpetrators can also face criminal charges -- up to a $1,000 fine and a year's imprisonment. The law takes effect Jan. 1, 2011. http:// www.computerworld.com/s/article/9188498/ California_bans_malicious_online_impersonation?taxonomyId=17

Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase (Eric Goldman, 29 Sept 2010) - On my personal blog, I have repeatedly blogged about plaintiffs who tell one story in court only to have that story undone by their postings to social networking sites. See, e.g., Sedie v. US, People v. Franco (despite the tragedy, my personal favorite) and Embry v. State. This case is in the same vein. Romano claims that she is largely bedridden/housebound, but her public Facebook pictures show her apparently enjoying herself away from home. The defense requests access to her non-public posts on Facebook and MySpace, which the judge grants. The short opinion focuses on the defense's ability to access the private posts, but the actual order covers both current as well as deleted material. Specifically, the court orders "Defendant STEELCASE's motion for an Order granting said Defendant access to Plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, is hereby granted in all respects." The court didn't discuss the deleted material separately in its analysis, but this seems like a gotcha. Once a person posts material to Facebook or MySpace, there may not be a meaningful "undo"--even deleting it does not eliminate the material as future discoverable evidence for the duration of Facebook's and MySpace's retention periods. [This raises the related Q of how long the sites archive deleted material. Facebook's privacy policy had the opaque statement "Removed and deleted information may persist in backup copies for up to 90 days, but will not be available to others." Putting aside the ambiguity of not being available to others--an untrue statement given the subsequent privacy policy statement about cooperating with legal requests--I couldn't tell if this was the retention policy. So, if I delete a photo from Facebook on day 1, does this statement mean that the photo will become undiscoverable by day 91?] http://blog.ericgoldman.org/archives/2010/09/deleted_faceboo.htm

Who Owns a Terminated Employee's Twitter Account? (Law.com Legal Blog Watch, 5 Oct 2010) - On his Spam Notes blog, Venkat Balasubramani attempts to answer an interesting question inspired by CNN's recent firing of anchor Rich Sanchez for comments he made about comedian Jon Stewart. The question, first posed by Marshall Kirkpatrick at ReadWriteWeb, is who owns the rights to Sanchez's CNN-branded Twitter account (@ricksanchezcnn) with over 146,000 followers? Kirkpatrick asks: "Does Sanchez own his Twitter account or does CNN? Ought he be required to remove the reference to CNN from his name?" Venkat writes that absent an agreement governing the right to the username, the issue is quite muddy. He believes Sanchez could argue that "if he built up a fan-base as a result of his popularity, he's not required to turn over his 'fans' to his employer." CNN, on the other hand, could counter that Sanchez "gained these followers by exploiting the CNN brand and by using company resources." Venkat concludes that Sanchez's position is probably stronger, but that he probably cannot keep the letters "CNN" in his username. Venkat adds that CNN and its media peers would be well-served to start addressing ownership of social media accounts via contract. Such an agreement, he notes, could have provided that upon termination:

(1) Sanchez would stop using the account immediately;

(2) CNN would have access to Sanchez's password at all times;

(3) Sanchez would not post any public statements without CNN's approval; and

(4) Sanchez would turn over the account to CNN.

http:// legalblogwatch.typepad.com/legal_blog_watch/2010/10/who-owns-a-terminated- employees-twitter-account.html [Editor: this advice might be more nuanced, don't you think? E.g., #3 is a bit strange.]

From the monthly IPLRN emails...

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