BUS 250 ch 10,11,12,13 vocab

nder the CDA, end users and anyone who simply provides a neutral forum for informa- tion (such as ISPs and website hosts) are not liable for content provided by someone else. Only_____ ______ are liable

content providers

3) Anonymity

A famous cartoon depicts a dog at a computer. The dog boasts, "on the internet, nobody knows you're a dog." The anonymity afforded by the digital world means that, in many instances, victims of online defamation may not know who posted the harmful comments. The First Amendment protects anonymous speech, provided it is lawful!!!

Electronic Communications Privacy Act (ECOA) of 1986 def

A federal statute prohibiting unauthorized interception of, access to, or disclosure of wire and electronic communications -Violators of the ECPA are subject to both criminal and civil penalties

What is a contract?

A legally enforceable agreement

Public disclosure of private facts def

A tort providing redress (compensation) to victims of unauthorized and embarrassing disclosures

Who does the wiretapping statute apply to?

Both law enforcement and private individuals and has both criminal and civil penalties, As a result, police require a valid warrant to listen in or monitor a person's telephone calls

Strategic lawsuit against public participation SLAPP

A SLAPP, or strategic lawsuit against public participation, is a defamation lawsuit whose main objective is to silence speech through intimidation, rather than win a defamation case on the merits.

Non-competition agreement

A contract in which one party agrees not to compete with another

When plaintiffs are harmed anonymously, they face the additional burden of persuading a court to force the web host or ISP to unmask the speaker. In making this decision, courts must

(1) assess whether there is compelling evidence of wrong- ful conduct and (2) balance the need for disclosure against First Amendment concerns.

To obtain permission from the Foreign Intelligence Surveillance Court you have to demonstrate that the surveillance...

(1) targets "persons reasonably believed to be located outside the United States" AND (2) seeks "foreign intelligence information" This standard gives the government broad powers to collect emails, phone calls, and other electronic communications between people in the United States and anyone abroad

Remedies

A court will award money or other relief to a party injured by a breach of contract

Elonis v. US

- Elonis changed his facebook name and started to rap violent things and disclaimed that his raps were fiction he got fired from his job one day and his boss alerted the FBI who started to monitor what he was posting -he even posted a diagram of how to best get into his ex wifes house -he made raps about school shootings -FBI agents came to his house he posted that he would leave the female FBI agent bleeding Elonis was arrested for the federal crime of transmit- ting "any communication containing any threat . . . to injure the person of another" across state lines. The trial judge instructed the jury that the First Amendment does not protect a "true threat." The test of a true threat, accord- ing to the judge, was whether a reasonable person would perceive the statement as threatening

The core principles of the FIPS are

-notice/awareness -choice/consent -access/participation -integrity/security

2) The disclosed facts had been private

.The person seeking privacy must prove that she had a reasonable expectation of privacy in the information. But courts have held that people cannot have a reasonable expectation of privacy in information that is gener- ally visible or available.

Under the Stored Communications Act:

1) Any intended recipient of an electronic communication has the right to disclose it ex-Thus, if you sound off in an email to a friend about your boss, the (former) friend may legally forward that email to the boss or anyone else. 2) Internet Service Providers are generally prohibited from disclosing electronic messages to anyone other than the addressee ex-unless this disclosure is necessary for the performance of their service or for the protection of their own rights or property.

The Wiretap Act does not protect these 3 circumstances

1) If one party to the conversation consents, secret recording is legal under federal law. However, many states have their own laws requiring the consent of all parties to the conversation for recording to be legal. 2) Businesses may monitor conversations with their customers in the ordinary course of business provided they give notice. This rule explains why we often hear "this call may be monitored for training purposes" when we call companies. 3) Finally, wiretap laws only protect speakers with a reasonable expectation of privacy in the conversation. The two-step test for a reasonable expectation is the same as the one for the Fourth Amendment

Rules for Defamatory statements

1) Opinions are not defamatory statements that are simply opinions are never defamatory, no matter how harmful or insulting, or offensive. 2) Statements must be verifiably false 3) Anonymity

The 2 requirements for establishing "reasonable expectation of privacy"

1) The person had an actual, subjective expectation. of privacy 2) Society accepts the person's expectation of privacy as reasonable

The tort of intrusion requires the plaintiff to show that the defendant 1,2,3

1) intentionally intruded, physically or otherwise 2) upon the solitude or seclusion of another or on his private affairs or concerns 3) in a manner of highly offensive to a reasonable person example- Peeping through someone's windows or wiretap- ping his telephone is an obvious example of intrusion.

The public disclosure tort requires the plaintiff to show all of the following 4 things

1) the defendant made public disclosure 2) The disclosed facts had been private 3) The facts were not of legitimate concern t the public 4) The disclosure is highly offensive to a reasonable person

Website operators are also liable for their broken contracts and promises

After Cynthia Barnes broke up with her boyfriend, he created a profile of her on a Yahoo website, where he posted revenge porn, together with her addresses and phone numbers. He also suggested that she was interested in sex with random strangers. Many men were willing to oblige. For months, Yahoo did not even respond to Barnes's request to remove the profile. Not until a television show prepared to run a story about the incident did Yahoo contact Barnes to promise that the profile would be removed immediately. But two months later the com- pany had taken no action, so Barnes sued. The appeals court ruled that Barnes could bring a contract claim against Yahoo under a theory of promissory estoppel—that she had relied on the company's promise.

Offer

All contracts begin when a person or a company proposes a deal. It might involve buying something, selling something, doing a job, or anything else. But only proposals made in certain ways amount to a legally recognized offer.

How does the ECPA apply to employers?

An employer has the right to monitor workers' elec- tronic communications if (1) the employee consents; (2) the monitoring occurs in the ordinary course of business; or (3) in the case of email, if the employer provides the computer system.

The EU GDPR..

Applies to any business that processes Europeans' data, including companies located outside of Europe. • Defines "data" as any information that can be used, directly or indirectly, to identify someone, including a name, picture, or geolocation. • Defines "processing" to mean anything that is done to or with a person's data, including collecting and storing it. • Allows people to stop companies from processing their personal data. • Grants individuals broad rights to their data, including the right to know how it is used, the opportunity to edit or delete inaccuracies, and the right to have it erased from the internet if it is no longer relevant or of public concern. • Requires data processors to notify the authorities and individuals of any data breach. • Provides significant penalties. Websites that mishandle their customer's information may be fined up to 4 percent of their annual worldwide revenue. Large multination- als like Google could face fines in the billions of euros.

Note that the CDA does not protect web hosts or ISPs that engage in crimes or infringe intellectual property rights

Bright Builders, Inc., hosted Copycatclubs.com, a website that, as you might guess, sold counterfeit golf clubs. The court held that Bright Builders was liable despite the CDA because it participated in the design, building, marketing, and support of Copycatclubs.com. It even helped locate the counterfeit clubs that the website sold.32 Ulti- mately, a jury returned a verdict of $770,750 against Bright Builders

The First Amendment to the Constitu- tion protects free speech, even when it is dreadful. ___ there are some exceptions.

But

Online Privacy Policies

California requires any website that collects personal information from its residents to post a privacy policy conspicuously and then abide by its terms. Companies collecting information from Californians (including by mobile app) must disclose their consumer software tracking policies

Consent

Certain kinds of trickery and force can prevent the formation of a contract

Chaney v. Fayette County Public School District

Chaney was a 17yr old HS student and got an embarrassing pic of her in a bikini shows on a slide wither her name infront of the entire school for a lecture about embarrasing things on the internet. They got the pic from her face book, her account was on "friends and friends of friends." result: Because Chaney cannot show a violation of her Fourth Amendment rights, the Court will grant Defendants' motion on this claim.

Chapter 11

Chapter 11

Internet Service Providers (ISP's)

Companies that connect users to the internet

Courts have generally held that employees ________ 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

DO NOT

Employee Monitoring.

Delaware and Connecticut require employers to notify their workers before monitoring emails or internet usage

Ehling v Monmouth-Ocean Hosp. Serv. Corp

Ehling was a nurse workin at Monmouth hospital. Her facebook setting was set to"just friends." The supervisor called a coworker into her office to expose Ehling's account. result- The Court finds that Plaintiff has stated a plausible claim for invasion of privacy, considering that she actively took steps to protect her Facebook page from public view- ing. More importantly, however, the question of the rea- sonableness of the Plaintiffs' expectations of privacy is a question of fact for the jury to decide. Accordingly, the motion to dismiss the Complaint is denied.

2) Society accepts the person's expectation of privacy as reasonable

Everyone agrees that a bathroom stall is private. (Note to employers: Two-way mirrors in an employee bathroom are a bad idea)

The Wiretap Act protects every conversation T/F

FALSE!

Fair Information Practices (FIP) are laws T/F

FALSE! Although they are not law, the FIPS have guided the creation of many privacy laws and policies. These principles summarize the rights that we as individuals and businesses should demand and protect

Children's Online Privacy Protection Act of 1998 (COPPA)

Federal statute enforced by the FTC regulating children's privacy online prohibits internet operators from collecting information from children under 13 without parental permission. It also requires sites to disclose how they will use any information they acquire

Foreign Intelligence Surveillance Act (FISA) def

Federal statute governing the governments collection of foreign intelligence in the United States sets out the rules that limit the use of electronic surveillance to collect foreign intelligence (otherwise known as spying) within the United States.

Huff v Spaw

Huff was the chairman of the airport board and was on a trip, he called spaw and then thinking he had hung up, he started talking about private business details. Spaw heard the convo about possibly firing her and recorded it result- The district court entered summary judgment for Shaw, reasoning that Huff did not have a reasonable expectation of privacy in his pocket-dialed call, and therefore the Wiretap Act did not apply. Huff appealed.

Third Party Interests

If Jerome and Tara have a contract, and if the deal falls apart, can Kevin sue to enforce the agreement? It depends.

Performance and Discharge

If a party fully accomplishes what the contract requires, his duties are discharged. But what if his obligations are performed poorly, or not at all?

1) Opinions are not defamatory statements that are simply opinions are never defamatory, no matter how harmful or insulting, or offensive.

In contrast, a little league dad was found liable for defamation after falsely posting that his son's team encouraged adulterous affairs between the coaches and the players' mothers

integrity/security

Information collectors must take reasonable precautions to ensure that the data they collect are accurate and secure

Jones v Dirty World Entertainment Recordings LLC

Jones was a HS teacher and a Bengals cheerleader. Anonymous comments were posted on The Dirty.com. Jones emailed the owner of the site asking to remove the post, but he wouldn't. The Dirty appealed, arguing that the CDA made it immune from liability because it did not create or develop the defama- tory content Because (1) the defendants are internet service provid- ers, (2) the statements at issue were provided by another information content provider, and (3) Jones's claim seeks to treat the defendants as a publisher or speaker of those statements, the CDA bars Jones's claims. We vacate the judgment in favor of Jones.

Davis v. Mason

Mason was a surgeon Davis was his apprentice. They further agreed that if Davis left Mason's practice, he would not set up a competing establishment within 10 miles of Thetford at any time within 14 years. Davis eventually broke the promise and made a competing establishment (non competition agreement) Mason won!

Under this statute, commercial email

May not have deceptive headings (From, To, Reply To, Subject), • Must offer an opt-out system permitting the recipient to unsubscribe (and must honor those requests promptly), • Must clearly indicate that the email is an advertisement, • Must provide a valid physical return address (not a post office box), and • Must clearly indicate the nature of pornographic messages. A company can avoid these requirements by obtaining advance permission from the recipients.

Disclosure of Personally Identifying Information.

Minnesota and Nevada require ISPs to obtain their customers' consent before sharing any of their information, including surfing habits and sites visited

1) The person had an actual, subjective expectation. of privacy

Most people expect privacy in restrooms, even those at work. Some people might expect that no one will rummage through their desk drawers in their cubicle; others might think that the personal emails they send on the company computers are private. These exam- ples are subjective expectations of privacy

notice/awareness

Notice should be given before any personal information is collected.

Contracts Checklist

Offer Acceptance Consideration Legality Capacity Consent Writing

Acceptance

Once a party receives an offer, he must respond to it in a certain way. We will examine the requirements of both offers and acceptances in Chapter 12.

Social Media Passwords

Over a dozen states now ban employers from requesting job candidates' or employees' social media passwords.

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, or amend any personally identifiable record about them.

4) The disclosure is highly offensive to a reasonable person

Privacy is somewhat subjective. One person's secret is another's reality show. For this reason, defendants must prove that the unauthorized revelation would have offended most reasonable people.

Communications Decency Act of 1996 (CDA)

Provides ISPs immunity from liability when information was provided by an end user (Congress reasoned that if ISPs faced the threat of a lawsuit for every problematic posting, the companies would severely restrict content, and the development of the internet)

revenge porn

Revenge porn is the unauthorized posting of sexually explicit photos of someone else, often with the intent to embarrass or shame. Over 35 states now have laws making revenge porn a crime. Although many states already criminalize taking another person's nude picture without consent, these new laws apply to pictures taken consensually, but later posted online for the purpose of intentionally harassing or causing emotional distress.

Reader Privacy

Some states, such as Arizona and Missouri, prohibit libraries from disclosing their patrons' reading habits. California and Delaware prohibit online booksellers from sharing the list of books browsed, read, or purchased by their customers

3) The facts were not of legitimate concern t the public

The First Amendment pro- tects free speech and, therefore, sometimes undermines privacy rights. To protect their privacy, plaintiffs must prove that the revealed secret was not of public concern, that is, that the public was not entitled to know about it.

example of Net neutrality

The agency prohibits broadband ISPs from blocking lawful content or giving preferential treatment to some internet content or traffic.

Legality

The contract must be for a lawful purpose. Courts will not enforce agree- ments to sell cocaine, for example

1) the defendant made public disclosure

The defendant must have divulged the secret information to a number of people, not just one other person.

Cyber security

The internet has ushered in a wave of new crimes, from phishing (attempts to fraudulently acquire personal data from users) to denial-of-service attacks (which paralyze computers and networks)

Capacity

The parties must be adults of sound mind

Net neutrality

The principle that all information flows on the internet must receive equal treatment regardless of source

Wiretap Act

The section of the ECPA that prohibits the interception of face-to-face oral communica tions and telephone calls

Stores Communications Act

The section of the ECPA that prohibits the unlawful access to stored communications, such as email

Reasonable expectation of privacy

The test to analyze whether privacy should be protected

Consideration

There has to be bargaining that leads to an exchange between the parties. Contracts cannot be a one-way street; both sides must receive some measurable benefit.

data breach

When sensitive or confidential information is copied, transmitted, or viewed by an individual who is not authorized to handle the data.

2) Statements must be verifiably false

When visitors of the Grand Resort Hotel reported the presence of thick dirt and dark hair in the bathtubs, TripAdvisor ranked it one of the "Dirtiest Hotels in America." Grand Resort sued TripAdvisor for defamation, but lost. The appeals court concluded that there was no way to verify whether the hotel was, in fact, the most foul, so the statement was not technically false.

Violence

While the First Amendment may protect offensive or outrageous speech, it does not protect threats of violence against individuals.

writing

While verbal agreements are often contracts, some types of contracts must be in writing to be enforceable.

contract

a legally enforceable agreement

User-generated content

any content created and made publicly available by end users —everything from social media posts, blogs, comments, cus- tomer reviews, wikis, images, and videos—created by end users and shared publicly through the Web.

But one thing employers ________do to is access an employee's social media profile by trickery or coercion.

can NOT it violates the ECPA

in the early days of the telephone, the Supreme Court held that the police ----- legally tap into an individual's private telephone lines (or wiretap) without a warrant. Six years later, in 1934, Congress made unauthorized wiretapping illegal for the first time. Today, the Wiretap Act makes it illegal to intercept or record face-to-face oral communi- cations and telephone calls during their transmission.19 It also prohibits disclosing the con- tents of an illegal recording.

could

Government agencies must _______ irrelevant and personally identifying data before providing it to other agencies.

delete

FISA provides that To spy on people located in the United States who are communicating abroad, the government _________ need a warrant but it must obtain permission from a secret Foreign Intelligence Surveillance Court (FISC).

does NOT

electronic communication includes

email, voicemail, and social media

Thus, an employer _______ the right to monitor electronic communication even if it does not relate to work activities.

has

The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN- SPAM)

is a federal statute that regulates spam, but does not prohibit it. This statute applies to virtually all promotional emails, whether or not the sender has a preexisting relationship with the recipient.

data disposal laws

mandate that businesses destroy customer data and maintain reasonable security procedure to guard against theft

The government must _______ defendants if the evidence used against them was gathered by FISA surveillance.

notify

data privacy

people's right to control information about themselves

the tort of Public disclosure of private facts

prohibits the unjustifiable revelation of truthful, but secret, information.

The Stored Communications Act(Title II of the ECPA)

prohibits unauthorized access to or disclosure of stored wire and electronic communications

Section 5 of the FTC(Federal Trade Commission) Act

prohibits unfair and deceptive acts or practices The FTC applies this statute to online privacy policies. It 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. The FTC also regulates truth in advertising and endorsements—and its rules apply equally to bloggers, YouTubers, online reviewers, and others on social media. Under FTC rules, anyone who endorses a product must disclose all compensation (either in cash or free products) they receive for product reviews

internet of things

refers to internet-connected every day devices, vehicles, and even buildings

The Securities and Exchange Commission (SEC)

regulates the securities industry, requires financial institutions to adopt written policies, procedures, and training programs to safeguard customer records and information

When a minor was sexually assaulted by a man she met on social media, her family sued the site, claiming it did not have proper safety measures to prevent the girl from meeting her attacker. The court ________ this claim

rejected, reasoning that the site was immune because it had not provided the content

data breach laws

require businesses to notify individuals affected by a security breach

EU General Data protection Regulations (GDPR)

sets out the data privacy rights of all Europeans

European privacy laws are the __________ in the world, and their effects far-reaching. Because so many companies from outside Europe operate there, these rules affect busi- nesses and employees worldwide.

strictest

Defamation

the law of defamation applies online 1) A plaintiff must prove that the defendant communicated a false statement, which harmed his reputation

An action does not violate the ECPA if it is ______________ or if either party _______________

unintentional.......consents

The Fourth amendment prohibits

unreasonable searches and seizures by the government

Spam

unsolicited commercial email

3 basic questions of promises

• Is it certain that the defendant promised to do something? • If she did promise, is it fair to make her honor her word? • If she did not promise, are there unusual reasons to hold her liable anyway? Courts have not always assumed that promises are legally significant. In the twelfth and thirteenth centuries, promises were not binding unless a person made them in writing and affixed a seal to the document.