Business law chapter 10

Communications decency act of 1996 (CDA)

- Created broad immunity for ISPs and websites - end users and anyone who simply provides a neutral forum for information (such as ISPs and website operators) are not liable for content that is provided by someone else. only content providers are liable - to avoid liability, the ISP or website must not write, edit, or encourage the content -does not protect web hosts or ISPs that engage in crimes or infringe intellectual property rights - website operators are liable for their broken contracts and promises- theory of promissory estoppel

The right to privacy

- Louis Brandeis, Samuel Warren - article advocated the creation of a new right protecting an individuals personal space from intrusion and disclosure

Tracking tools

- collect data on all the websites someone visits - records keystrokes to keep track of whatever information the consumer has entered online

Internet service providers (ISP's)

- companies like verizon and comcast that connect customers to the internet - would like the option of treating high capacity users differently- either charging them more or slowing their access to the internet

User generated content

- everything from social media postings, blogs, comments, customer reviews, wikis, images and videos- created by end users and shared publicly through the web

Intrusion

- into someones personal life is a tort if a reasonable person would find it offensive

Open internet order

- issued by FCC - prohibited broadband ISPs from 1. blocking lawful content and services 2. giving preferential treatment to some internet content or traffic

Net neutrality

- the principle that all information flows on the internet must receive equal treatment

Core principles of the Fair Information Practices (FIPs)

- Notice/awareness: should be given before any personal information is collected - choice/consent: people should be able to control the use and destination of their information - Access/participation: people should have the ability to view, correct, ore amend any personally identifiable record about them - integrity/security: information collectors must take reasonable precautions to ensure that the data they collect are accurate and secure - FIPs are recommendations, not law - often the basis for online privacy policies

The tort of intrusion requires the plaintiff to show that...

1. the defendant intentionally intruded, physically or otherwise, 2. upon the solitude or seclusion of another or on his private affairs or concerns, 3. in a manner highly offensive to a reasonable person

Requirements for establishing a "reasonable expectation of privacy"

1. the person had an actual, subjective expectation of privacy 2. society accepts the persons expectation of privacy as reasonable - courts have generally held that employees do not have a reasonable expectation of privacy in the workplace, especially if using hardware provided by the employer, or if the employee handbook says they may be monitored

Foreign intelligence surveillance act (FISA)

- Sets out the rules for the use of electronic surveillance to collect foreign intelligence (spying) within the united states - enacted in 1978 after decades of abuses in the name of national security - the act provides that: - to spy on people located in the US who are communicating abroad, the govt does not need a warrant but must obtain permission from a secret foreign intelligence surveillance court - govt need only demonstrate that the surveillance targets "persons reasonably believed to be located outside the united states" and seeks "foreign intelligence information" - government agencies must delete irrelevant and personally identifying data before providing it to other agencies - the govt must notify defendants if the evidence being used against them in court was gathered in FISA surveillance

Behavioral marketing/targeting

- a widespread practice that involves inferring needs and preferences from a consumers online behavior and then targeting related advertisements to them

Under the Electronic communications privacy act of 1986 (ECPA).....

- any intended recipient of an electronic communication has the right to disclose it - ISP's are generally prohibited from disclosing electronic messages to anyone other than the adressee - an employer has the right to monitor worker's electronic communications if (1) the employee consents, (2) the monitoring occurs in the ordinary course of business, (3) in the case of email, the employer provides the computer system - thus an employer has the right to monitor electronic communications even if it does not relate to work activites - employers cannot access an employees social media profile by trickery or coercion - consider anything you publish on the internet to be public, companies should establish policies that: - employees should never reveal their company's name on a personal blog or social media. Nor should they reveal confidential or proprietary information - personal blogs should contain a disclaimer that "All postings are my opinion and not those of my employer, who has neither vetted nor approved them" - online behavior should never be offensive, impolite, or reflect badly on the employer

Tort of public disclosure of private facts

- applies when people spill the beans - prohibits the unjustifiable revelation of truthful, but secret, information - requires the plaintiff to show that: -the defendant made public disclosure - the disclosed facts had been private - the facts were not of legitimate concern to the public - the disclosure is highly offensive to a reasonable person

The federal trade commission act

- authorizes the federal trade commission to protect customers and prevent unfair competition

Cyberspace

- consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications

EU privacy directive

- establishes data protection for Europeans in all their commercial transactions worldwide - requires an opt-in system, under which tracking tools cannot be employed unless the consumer is told how the tools will be used and then specifically grants permission for their use

Electronic communications privacy act of 1986 (ECPA)

- federal statute that prohibits unauthorized interception of, access to, or disclosure of wire and electronic communications -electronic communications= email, cell phones, social media - Violaters are subject to both criminal and civil penalties - an action does not violate this if it is unintentional or if either party consents

The controlling the assault of non-solicited pornography and marketing act (CAN-SPAM)

- federal statute that regulates spam, but does not prohibit it - applies to virtually all promotional emails, whether or not the sender has a preexisting relationship with the recipient - commercial email: -may not have deceptive headings - must offer an opt-out system permitting the recipient to unsubscribe (must honor these requests promptly - must clearly indicate that the email is an advertisement - must provide a valid physical return address - must clearly indicate the nature of pornographic messages - a company can avoid these requirements by obtaining advance permission from the recipients - This act has had little impact on the quantity of spam

Telecommunications act of 1996

- grants the agency the right to regulate broadband infrastructure

About 1/3 of companies...

- have fired a worker over inappropriate email or internet use

Code of fair information practices

- issued by dept of housing, education, and welfare - in the late 90's ,the FTC adapted it to the internet marketplace

Spam

- officially known as unsolicited commercial email (UCE) or unsolicited bulk email (UBE) - Estimated 90% of email is spam - adds to the cost of connecting to the internet as ISPs increase server capacity to handle the millions of spam emails

Social media

- oversharing carries consequences

Children's online privacy protection act of 1998 (COPPA)

- prohibits internet operators from collecting information from children under 13 without parental permission. - also requires sites to disclose how they will use any information they acquire

Section 5 of the FTC act

- prohibits unfair and deceptive acts or practices - applies this statute to online privacy policies - does not require websites to have a privacy policy, but if they do have one, they must comply with it, and it cannot be deceptive - bloggers face fines up to $1,000 if they do not disclose all compensation they receive for writing product reviews - celebrities must disclose their relationships with advertisers when making endorsements outside of traditional ads, such as on talk shows or in social media

4th amendment to the constitution

- prohibits unreasonable search and seizures by the govt - protects the privacy rights of criminal defendants - protections extend to the relationship between the government and certain citizens, including govt and public school workers

a govt employer has the right to review an employees electronic communications for a work related purpose if..

- the search was "justified at its inception" and if "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving right to the search"