Chapter 6 Internet Law, Social Media, and Privacy

Federal Trade Commission (FTC)

investigates consumer complaints of privacy violations

Internet Service Providers (ISPs)

organizations that provide access to the Internet

Exceptions to Liability of Internet Service Providers in Online Defamation

Although the courts generally have construed the CDA as providing a broad shield to protect ISPs from liability for third party content, some courts have started establishing some limits to this immunity

top-level domain (TLD)

ends with this, tells you what type of entity that operates the site (ex. .com for commercial, .edu for education)

Protection of Social Media Passwords

- 2014: eleven states (Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah, and Washington) have passed laws to protect users from disclosing passwords (including virtually any online storage - iTunes, i-cloud, etc) - federal government also considering legislation to prohibit employers and schools from demanding passwords to social media accounts - will not completely prevent employers and others from taking actions against a person based on his or her social network postings (details on pg 115)

State Regulation of Spam

- 36 states enacted laws prohibiting or regulating the issue - many states require the senders of e-mail ads to instruct the recipients on how they can "opt out" e-mail ads from that source - ex. include a toll-free phone number or return e-mail address to ask the sender to send no more unsolicited e-mails.

Identifying the Author of Online Defamation

- A major barrier to online defamation cases is the anonymity of the Internet. ISPs can only disclose personal information about its customers when ordered to do so by a court - a threshold barrier to anyone who seeks to bring an action for online defamation is discovering the identity of the person who posted the defamatory message - increased lawsuits against John Does and then using authority of court to obtain persons identity from ISP for defaming messages - sometimes has conflicting issue with first amendment

Federal CAN-SPAM Act

- Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act (enacted by congress in 2003) - Permits the sending of unsolicited commercial e-mail, but prohibits certain types of spamming activities - certain activities prohibited include: use of "dictionary attacks"—sending messages to randomly generated e-mail addresses—and the "harvesting" of e-mail addresses from Web sites through the use of specialized software

Employers' Social Media Policies

- Employees can be disciplined or fired for using social media in a way that violates their employer's stated policies - Courts and administrative agencies usually uphold an employer's right to terminate a person based on his or her violation of a social media policy

Administrative Agencies and Social Media

- Federal regulators also use social media posts in their investigations into illegal activities - ex. the decision in a hearing before an administrative law judge can turn on the content of two Facebook posts

Criminal Investigations and Social Media

- Law enforcement uses social media to detect and prosecute criminals

Internet Law

- Laws specifically address issues that only arise on the Internet - ex. Unsolicited email, domain names, and cybersquatting OR trademark infringing and dilution online

Consumer Privacy Protection

- Obama administration proposed privacy bill of rights-- with goal of ensuring personal information is safe online - if passed, retailers would have to change procedures and give customers better option about what and how data is collected for marketing - also would have to account how info will be used if collected

Online Defamation

- One of the most prevalent cyber torts - An online message attacking another person or entity in harsh, often personal, and possibly defamatory, terms

Stored Communications Act (SCA)

- Part of the ECPA that prohibits intentional and unauthorized access to stored electronic communications and sets forth criminal and civil sanctions for violators - also prevents "providers" of communication services (cell phone companies and social media networks) from divulging private communications to certain entities and individuals

Methods of File-Sharing

- Peer-to-peer (P2P) networking - distributed network - cloud computing

Liability of Internet Service Providers in Online Defamation

- The Communications Decency Act (CDA) states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." - ISPs usually are treated differently from publishers in print and other media and are not liable for publishing defamatory statements that come from a third party.

Internet Companies' Privacy Policies

- The Federal Trade Commission (FTC) investigates consumer complaints of privacy violations - FTC has forced Internet companies (Google, Facebook, Twitter, and MySpace) into consent decree that gives the FTC broad power to review their privacy and data practices - FTC can sue companies that violate the terms of the decree - it is frequently the companies, rather than courts or legislatures, that are defining the privacy rights of their online users by providing more information to consumers upfront

Distribution System

- The Internet Corporation for Assigned Names and Numbers (ICANN)

DVDs and File Sharing

- The motion-picture industry has lost significant revenues in recent years due to the proliferation of DVD "pirating" and technological advances in the software that facilitates unauthorized copying. - ex. BitTorrent- allows users to download high quality files from the internet

Privacy and the Internet

- To maintain a suit for the invasion of privacy a person must have a reasonable expectation of privacy in the particular situation - People have a reasonable expectation of privacy when they enter their personal banking or credit-card information online - also have a reasonable expectation that online companies will follow their own privacy policies - not reasonable to expect privacy in statements made or photos posted on Twitter

Sharing stored music files

- When files are stored on a computer or server and shared with others, there could be copyright infringement - Recording artists and labels lose royalties and revenues if few digital downloads or CDs are purchased and then made available on distributed networks

Data Collection and Cookies regarding Privacy Online

- Whenever a consumer purchases items online, the retailer collects information about the consumer - uses cookies to provide detailed information to marketers about an individual's behavior and preferences, which is then used to personalize online services - can lead to complaints regarding a consumer's right to privacy

Typosquatting

- a problem that occurs when someone registers purposely misspelled variations of well-known domain names - ex. googl.com or appple.com - bc users aren't perfect typists, leads to increased traffic, and increased profit from advertisers - difficult to prove confusing similarity as required by ACPA - bc so costly, businesses tend to register thousands of domain names to protect their brands and trademarks

U.S. Safe Web Act

- after Federal CAN-SPAM Act deceptive emails increased from servers in other nations, but US did not have sanction to investigate - Allows the Federal Trade Commission (FTC) to cooperate and share information with foreign agencies in investigating and prosecuting those involved in spamming, spyware, and various Internet frauds and deceptions - also provides a safe harbor for Internet Service Providers (ISPs), meaning immunity from liability for supplying information to the FTC concerning possible unfair or deceptive conduct in foreign jurisdictions.

Anticybersquatting Consumer Protection Act (ACPA) (legislation for anticybersquatting)

- amended Lanham Act - makes cybersquatting illegal if both are true: 1. name is identical or confusingly similar to the trademark of another. 2. one registering, trafficking in, or using the domain name has a "bad faith intent" to profit from that trademark.

Exclusions to Electronic Communications Privacy Act (ECPA)

- any electronic communications through devices that an employer provides for its employee to use "in the ordinary course of its business." - if a company provides the electronic device (cell phone, laptop, tablet) to the employee for ordinary business use, company is not prohibited from intercepting business communications made on it - "business-extension exception" allows employers to monitor employees electronic communications made in ordinary course fo business, BUT does not permit employers to monitor employees' personal communications - allows an employer to avoid liability under the act if the employees consent to having their electronic communications monitored by the employer

Application and Sanctions of ACPA

- applies to all domain name registrations of trademarks - successful suits brought under by act can receive statutory damages from $1,000 to $100,000 - roadblocks to pursuing lawsuits: 1. domain name registrars offer privacy services that hide the true owners of Web sites, making it difficult for trademark owners to identify cybersquatters 2. trademark owner has to ask the court for a subpoena to discover the identity of the owner of the infringing Website 3. high costs of court proceedings, discovery, and even arbitration, many disputes over cybersquatting are settled out of court. - to facilitate dispute resolution, ICANN offers Uniform Rapid Suspension (URS) System

Cyber torts

- are torts that arise from online conduct

Peer-to-peer (P2P) networking

- bypasses going through a central Web server by using many personal computers (PCs) connected to the Internet - people on the same network can access files stored on one another's PCs

Licensing Electronically

- company may permit another party to use a trademark (or other intellectual property) under a license - can be granted for part of a domain name - ex. when downloading an app on your phone, being licensed to use the app not. have ownership rights in it - Licensing agreements frequently include restrictions that prohibit licensees from sharing the file and using it to create similar software applications - may also limit the use of the application to a specific device or give permission to the user for a certain time period

Digital Millennium Copyright Act (DMCA)

- congress passed in 1998 - gave protection to owners of copyrights in digital information - established civil and criminal penalties for anyone who bypasses encryption software or other technological antipiracy protection - prohibits the manufacture, import, sale, and distribution of devices or services for circumvention - provides for exceptions to fit the needs of libraries, scientists, universities, and others - generally, law does not restrict the "fair use" of circumvention methods for educational and other noncommercial purposes - ex. allowed for computer security, conducting encryption research, to protect personal privacy, and enable parents monitoring children's use of Internet - limits the liability of ISPs-- not liable for copyright infringement by its customer unless the ISP is aware of the subscriber's violation (pg 111 for details)

Structure of Domain Names

- ends with a generic top-level domain (TLD), tells you what type of entity that operates the site (ex. .com for commercial, .edu for education) - second-level domain (SLD), part of the name to the left of the period, chosen by the business entity or individual registering the domain name

Other Advantages to Company Social Media Networks

- including real-time information about important issues (i.e. production glitches) - posts can include tips on how to best sell new products - how to deal with difficult customers - share information about competitors' products and services - significant reduction in the use of e-mail (reduces use of mass email and encourages collaborative messages and presentations in the company's social network)

Cookies

- invisible files that computers, smartphones, and other mobile devices create to track a user's Web browsing activities - provide detailed information to marketers about an individual's behavior and preferences, which is then used to personalize online services - retailer can amass considerable data about consumer shopping habits - can lead to complaints regarding a consumer's right to privacy

Meta Tags

- key words that are inserted into the HTML (hypertext markup language) code to tell Internet browsers specific information about a Web page. - increase the likelihood that a site will be included in search engine results, even though the site may have nothing to do with the key words - Search engines compile their results by looking through a Web site's key-word field - Using another's trademark in a meta tag without the own- er's permission, however, normally constitutes trademark infringement if not reasonably necessary and suggestive of sponsorship by that company

Company social media networks

- many companies like Dell and Nikon have their own social media networks - Posts on these internal networks are different from the typical posts on Facebook, LinkedIn, and Twitter - Employees use these to message about topics related to work (deals that are closing, new products, or details of customer orders) - tone is businesslike

Copyrights in Digital Information

- most important form of IP protection on internet - because most material on the Internet (including software and database information) is copyrighted, and in order to transfer that material online, it must be "copied." - when a party downloads software or music into a computer's random access memory (RAM) without authorization, a copyright is infringed - Technology has increased potential for copyright infringement - Congress extended criminal liability for the piracy of copyrighted materials to persons who exchange unauthorized copies of copyrighted works without realizing a profit (does not have to have financial gain)

Cloud Computing

- new method of sharing files on the internet - subscription-based or pay-per-use service that extends a computer's software or storage capabilities - can deliver a single application through a browser to multiple users - might be used to pool resources and provide data storage and virtual servers that can be accessed on demand - ex. Amazon, Facebook, Google, IBM, and Sun Microsystems are using and developing these services

The Internet Corporation for Assigned Names and Numbers (ICANN)

- nonprofit corporation - oversees distribution of domain names and operates an online arbitration system - overhauled domain name distribution system - starting in 2012 started selling generic top-level domain names (gTLDs) for an initial price of $185,000 plus an annual fee of $25,000. (can take any form past .com , .net, or .org)

Cybersquatting

- occurs when a person registers a domain name that is the same as, or confusingly similar to, the trademark of another and then offers to sell the domain name back to the trademark owner. - one goal of gTLD was to relieve this issue - still an issue because more TLDs and gTLDs are now available and many more companies are registering domain name. speed at which domain names change hands and the difficulty in tracking mass automated registrations have made a cybersquatting environment

Trademark Dilution in Online World

- occurs when a trademark is used, without authorization, and diminishes the distinctive quality of the mark - unlike infringement, dilution does not require proof that consumers will be confused by the mark-- products don't have to be similar

Uniform Rapid Suspension (URS) System

- offered by ICANN to facilitate domain/ trademark resolution - allows trademark holders with clear-cut infringement claims to obtain rapid relief.

Domain Name

- part of an Internet address, such as cengage.com.

second-level domain (SLD)

- part of the name to the left of the period - chosen by the business entity or individual registering the domain name - competition for these amongst firms and similar product names leads to disputes - with similar name, parties attempt to profit from competitors goodwill

The Electronic Communications Privacy Act (ECPA)

- prohibits the intentional interception of any wire, oral, or electronic communication - also prohibits the intentional disclosure or use of the information obtained by the interception

Social Media

- provide a means by which people can create, share, and exchange ideas and comments via the Internet - Internet users spend more time on social networks than at any other sites-- and increases every year - ex. Facebook, Google+, MySpace, LinkedIn, Pinterest, and Tumblr

Legal Issues regarding Social Media

- social media emergence created many legal and ethical issues for businesses - ex. firm's rights in valuable intellectual property may be infringed if users post trademarked images or copyrighted materials on these sites without permission - social media posts used in discovery in litigation to show damage information and establish intent of persons knowledge (can be smoking gun to liability) - Tweets and other social media posts can also be used to reduce damages awards

goodwill

- the non tangible value of a business - related to profiting off of competitors similar second-level domain names

Spam

- unsolicited, unwanted commercial junk email messages - flooding of virtual mailboxes with advertisements, solicitations, and messages - can target businesses and individuals - covered 75% of emails by 2015

distributed network

- using this type of network individuals on the same network can access files stored on one another's PCs - People all over the country or the world can work together on the same project by using file-sharing programs-- offering an unlimited number of uses

Protection of Trade Secrets (Company Social Media Networks)

-advantage of internal employee communication system - company decides which employees can see particular intranet files and which employees will belong to each specific "social" group within the company - keep data from internal networks on their own servers and secure "clouds"

MP3 and File Sharing Technology

-enables music fans to download songs or entire CDs onto their computers or onto portable listening devices, such as smartphones - made it possible for music fans to access other fans' files by engaging in file-sharing via the Internet.