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This Week in Social Media: Facebook and Free Speech, Mobile Apps and New Privacy Rules

On tap this week: the top three concerns in data security, Delta’s privacy policy earns the airline a lawsuit, YouTube avoids a takedown notice for “Innocence of Muslims,” the FTC smells a rat and prosecutes illegal browser sniffing practices, and an Illinois village deletes comments from its Facebook page, setting off a First Amendment discussion. 

The week that was...


Concerned about data security? You should be

If you’re not really, really worried about data security by now, you might want to start. There are three areas you need to be concerned with, according to technology lawyer Robert Brownstone of Fenwick & West:

  • Disgruntled employees who intentionally leak information,
  • Well-intended employees who unintentionally make disclosures, and
  • Data theft, loss or hacking.

Delta’s probably not flying high today

After sending out warning letters in late October to 100 companies and mobile app developers, telling them to make their privacy policies conform to the California Online Privacy Protection Act, the state’s attorney general made good on her pledge to prosecute business that fail to comply. Earlier this week, AG Kamala Harris sued Delta Airlines for violating the law. From law firm Ifrah Law:

“The California AG alleges that the Fly Delta [mobile] app lacks a privacy policy, despite the fact that Delta’s app collects substantial amounts of personal information, including full names, telephone numbers, email addresses, photographs, and geo-locations. According to the complaint, ‘Users of the Fly Delta application do not know what personally identifiable information Delta collects about them, how Delta uses that information, or to whom that information is shared, disclosed, or sold.’ The AG asserts that Delta’s conduct violates the Online Privacy Protection Act and California’s Unfair Competition Law.”

“Keep climbing”? Keep your head down is more likely… (Ifrah Law)

Something smells funny when I visit these websites

The Federal Trade Commission recently announced a proposed settlement with an online advertising company and an affiliated website that failed to disclose their online data collection practices. Epic Marketplace and its affiliate Epic Media Group, according to the FTC, said one thing in their privacy policy, but did another, writes communications attorney Bob Scott at Davis Wright Tremaine:

“Epic said in its privacy policy that it would collect information about consumers’ visits to sites only within the Epic’s advertising network, alleged to consist of 45,000 sites. Yet in practice, the cookies received from these sites by consumers’ computers would run a script to determine whether the consumer had visited other web sites outside Epic’s network. Epic was able to update and track the results to obtain further details and to send targeted ads based on the consumer’s browsing history. Consumers would have no way to know Epic’s software actively searched the browser’s history.”

It’s the first time the FTC has taken action against an online company over a “browser sniffing” practice. Clearly Epic put its nose where it didn’t belong (Davis Wright Tremaine

“Innocence of Muslims” video stays up

The film may be highly offensive, sparking violent – and deadly – protests around the world, but online video provider YouTube did not violate actress Cindy Lee Garcia’s purported copyright on her “audio-visual dramatic performance” in the anti-Islamic film “Innocence of Muslims” when it hosted the film on its website. Garcia sought an injunction to force YouTube to take down the film, but her request was denied by a federal judge, writes Jenevieve Maerker of law firm Foley Hoag:

“The Court pointed out that ‘the nature of [Garcia’s asserted] copyright interest is unclear,’ given that the film is a ‘unitary whole’ and she did not claim to have joint authorship or joint copyright ownership of the film. Nevertheless, the Court ultimately sidestepped the issue of copyrightability and determined that ‘[e]ven if this copyright interest were cognizable and proven, by operation of law Garcia necessarily (if impliedly) would have granted the Film’s author a license to distribute her performance as a contribution incorporated into the indivisible whole of the Film.’”

In plain English: Garcia probably didn’t have any copyright over the film, and even if she did, she’d essentially given the film’s author the right to use it as he saw fit. Either way, YouTube is off the hook, and the film stays up. (Foley Hoag

Facebook and the First Amendment: a work in progress?

Does deleting Facebook comments violate the First Amendment right to free speech? What if the comments are on the page of a public entity? It’s not a rhetorical question: while monitoring an Illinois town’s Facebook page, a village trustee deleted some items and comments from the page. A community member brought an action under the state’s Open Meetings Act, seeking remedies for the village’s “action of censorship on a ‘supposed’ public site.” The state’s attorney general found that the village did not violate the Act, but left an important question unresolved, writes Jackie Wernz of law firm Franczek Radelet:

“The community member also argued that the village’s actions violated his First Amendment free speech rights. But the Illinois Attorney General does not have jurisdiction over First Amendment claims, and so quickly disposed of the claim because it did not address the OMA. The Attorney General thus did not address the merits of the First Amendment claim, so the question remains whether deleting comments is a constitutional violation.”

Stay tuned - this probably isn't that last we've heard of this issue. (Franczek Radelet

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