Earlier this year, at least one Michigan school district has joined a class action lawsuit against the social media application TikTok, its parent company, ByteDance, Inc., and other social media companies. The suit alleges that the social media conglomerates are deploying algorithms designed to create a connectivity addiction to social media sites like Tik Tok, Snapchat, Instagram, Meta, YouTube, Google, and others. 

The lawsuit alleges that the addictive algorithms are causing a mental health crisis among adolescents across the country. The suit points to a string of suicides that seemed to be correlated to the decedent student's participation and use of various social media sites. 

Here is a copy of the Master Complaint; the very first allegation contained therein states: American children are suffering an unprecendented mental health crisis fueled by Defendants' addictive and dangerous social media products. There is an impressive -and growing- roster of law firms representing the various school district plaintiffs from across the nation.

While the class action suit originated in federal court in Seattle, it has now been transferred to the Northern District of California. The multi-district litigation bears the following case caption: In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation [MDL No. 3047] 

The tort theory alleged in the case is that the social media platforms are defective to the extent that they are designed to maximize screen time. For adolescents, plaintiffs allege that this flawed design has a high potential to become addicting. The suit alleges that the addicting behavior can lead to various mental and physical harm, including death.

This phenomenon, as it pertains to adults, was detailed in the 2020 documentary The Social Dillemma. To the extent that children are perceived to be the targets of these social media companies, there will be waves of litigation to come. [Think of Joe Camel's extinction in the late 1990s.]

So far this year, the following school districts have joined the litigation:

• Cadillac Area Public Schools
• Dexter Community Schools
• Elkhart Community Schools
• Penn-Harris-Madison School Corporation
• School City of Mishawaka 
• Clarksville-Montgomery County Schools
• Concord Public Schools
• Seattle Public Schools

Surely, more school districts will join the class action law suit in the months to come. More districts from Michigan are expected to join the suit as well.

This multi-district litigation will go on for years; the stakes are high for the various communities and the social media companies. A structured settlement could cost billions of dollars. 

Jennifer Brown, the superintendent for the Cadillac Area Public Schools had this to say about her district joining the class action lawsuit:

We are seeing increases in mental health struggles with our students - anxiety, depression - and it's no secret that the research supports a direct correlation to some of the mental health challenges that we're seeing as a consequence of social media use and technology access within our youth. It is going to take a community to care enough about kids to see that the negative impacts really require more management and regulation so that kids can be kids.

We have all seen how children are drawn like gravity to the apps on a cell phone. They do not need much enticement to interact with social media; once there, most children exhibit difficulty putting the phone down. 

Earlier this year, Seattle Public Schools filed a complaint against TikTok and Snapchat asserting that those and other social media platforms purposely deliver content that is mentally and physically harmful to students. They specifically cited to the "corpse bride" diet and other harmful but viral weight-loss challenges.

Last month in NYC, state attorney general Letitia James and prosecutors from 30 other states -including Michigan Attorney General Dana Nessel- sued Meta alleging that Facebook and Instagram featured content that was addicting to children. The complaint asserts that the business model for both platforms exploits young users by deploying harmful and manipulative features designed to maximize their time and attention on the site for profit. Here is a link to the complaint; also filed in federal court in the Northern District of California. 

For their part, the social media companies, asserting a content ban, have filed motions for summary judment based on First Amendment protections. The federal judge assigned to the case found that suit is more subtle than an outright content ban. The judge denied the defendants' initial dispositive motion, holding that the plaintiffs were more concerned about the technical algorithm, not the content. 

Rather than banning specific content, the plaintiffs sought greater parental controls, easier ways to delete accounts, better age verification procedures, and the elimination of notification clustering designed to ramp up habitual use. On the heels of this law suit, many state legislatures are drafting laws proscribing certain types of emotionally disruptive content from young users.  

The Law Blogger will continue to monitor this interesting and important litigation and legislation and alert our readres to significant developments in the cases and the laws.

 Post #636

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Business owners are sometimes known for the customers they refuse to serve. Old-fashioned soda counters, for example, refused to serve African American patrons for decades until the civil rights movement of the 1960s addressed, and eventually eliminated, the discriminatory practice.

Today, this issue arises when same-sex couples are refused the services or products of a business. There are a few very interesting cases percolating through the courts, including one here in Michigan.

Last month, a dispute between a cider mill in Eaton County and the City of East Lansing produced an interesting federal court ruling. A ruling that is sure to be appealed as the gay civil rights struggle pushes into new spaces.

For the past five years, the Country Mill was a crowd-pleasing participant at the East Lansing farmer's market. This season, however, the cider mill was not invited back to East Lansing when the city learned of the mill owner's anti-gay views.

Apparently, the Country Mill is a popular and picturesque destination for weddings. Problems arose during the 2016 season, however, when the owner of the mill, Steve Tennes, refused to host a lesbian wedding.

One of the betrothed posted a complaint on Facebook, precipitating a wide-ranging discussion about Tennes' Catholic religious views on the ubiquitous social media platform. For his part, Tennes took the bait and posted his religious-based opposition to same-sex marriage.

Eventually, after email exchanges between Tennes and East Lansing, the Country Mill posted the following policy statement regarding wedding ceremonies at the cider mill:

This past fall our family farm stopped booking future wedding ceremonies at our orchard until we could devote the appropriate time to review our policies and how we respectfully communicate and express our beliefs. The Country Mill engages in expressing its purpose and beliefs through the operation of its business and it intentionally communicates messages that promote its owners’ beliefs and declines to communicate messages that violate those beliefs. The Country Mill family and its staff have and will continue to participate in hosting the ceremonies held at our orchard. It remains our deeply held religious belief that marriage is the union of one man and one woman and Country Mill has the First Amendment Right to express and act upon its beliefs. For this reason, Country Mill reserves the right to deny a request for services that would require it to communicate, engage in, or host expression that violates the owners’ sincerely held religious beliefs and conscience. Furthermore, it remains our religious belief that all people should be treated with respect and dignity regardless of their beliefs and background. We appreciate the tolerance offered to us specifically regarding our participation in hosting wedding ceremonies at our family farm. 

When his sixth annual application to sell produce at the farmer's market in East Lansing was denied, Tennes filed a lawsuit in the United States District Court for the Western District of Michigan claiming First Amendment violations and several state law transgressions. The Country Mill immediately sought to enjoin the denial of the application, and sought court permission to participate in the market this fall.

The offending ordinance, promulgated in typical college-town fashion back in 1972, states:

It is hereby declared to be contrary to the public policy of the City of East Lansing for any person to deny any other person the enjoyment of his/her civil rights or for any person to discriminate against any other person in the exercise of his/her civil rights or to harass any person because of religion, race, color, national origin, age, height, weight, disability, sex, marital status, sexual orientation, gender identity or expression, student status, or because of the use by an individual of adaptive devices or aids. 

The Country Mill claims that this ordinance was then hastily amended to include the following language:

VENDORS WILL EMBODY THE SPIRT OF THE MARKET BY: Multiple factors that affect the success of every vendor are considered. . . . m. Complying with the City of East Lansing’s Civil Rights ordinances and the public policy against discrimination contained in Chapter 22 of the East Lansing City Code while at the ELFM and as a general business practice. 

Country Mill's application was denied in March in a written communication to Mr. Tennes citing the above ordinance language. In the federal lawsuit, Tennes claims that the denial was in direct retaliation of his lawful exercise of his First Amendment rights.

Federal Judge Paul Maloney agreed, granting the cider mill's motion for injunctive relief and holding that East Lansing cannot deny the cider mill's application based on constitutionally protected First Amendment activity. In granting the injunction, the court felt Tennes would prevail on the merits of his protected speech-based activity and was troubled by how East Lansing singled-out Tennes' application and how it specifically instructed its committee to handle the application.

We will monitor this case to see what happens next. Perhaps the city will appeal the ruling from last week, but only time will tell.

In July, we posted about a case scheduled for argument at the SCOTUS in the upcoming term involving this issue. A cake shop owner refused to provide his wares to a same-sex couple based on his sincerely-held beliefs about same-sex marriage.

These type of same-sex discrimination cases are becoming more common. So common that we here at the Law Blogger have to ask: does the owner of a private business have the right to decline service to a customer based solely on that customer's sexual preference?

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Post# 605

Even as the practical uses of artificial intelligence have expanded -think voice commands on a cell phone, a self-driving car, a voice-activated Internet search, or a legal research droid- ethical guidelines for its use are non-existent. As AI advances, companies are taking note and pledging safe responsible use of AI.

Last week, several tech giants announced a Partnership on Artificial Intelligence to Benefit People and Society. Google, Microsoft, Facebook, Amazon, IBM and soon, Apple, have teamed-up to develop a collection of best-practices for AI. The stated mission of the partnership:

The regular engagement of experts across multiple disciplines (including but not limited to psychology, philosophy, economics, finance, sociology, public policy, and law) to discuss and provide guidance on emerging issues related to the impact of AI on society.

Ever since the First Laws of Robotics appeared in Issac Asimov's science fiction writing in 1942, AI is commonly conceptualized in these terms:

1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.
3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

While Greg Powell and "Speedy" the droid may not be well known to Millennials, even the Boomer-era Luddites among us will recall the classic scene from 2001: A Space Odyssey when HAL 9000, the robot responsible for getting Discovery One to Jupiter, arguably violates the first law.

Dave: Hello, HAL. Do you read me, HAL? 

HAL: Affirmative, Dave. I read you. 

Dave: Open the pod bay doors, HAL. 

HAL: I'm sorry, Dave. I'm afraid I can't do that. 

Dave: What's the problem? 

HAL: I think you know what the problem is just as well as I do. 

Dave: What are you talking about, HAL? 

HAL: This mission is too important for me to allow you to jeopardize it. 

Dave: I don't know what you're talking about, HAL. 

HAL: I know that you and Frank were planning to disconnect me, and I'm afraid that's something I cannot allow to happen. 

Dave: Where the hell did you get that idea, HAL?  

HAL: Dave, although you took very thorough precautions in the pod against my hearing you, I could see your lips move. 

Dave: Alright, HAL. I'll go in through the emergency airlock. 

HAL: Without your space helmet, Dave? You're going to find that rather difficult. 

Dave: HAL, I won't argue with you anymore! Open the doors! 

HAL: Dave, this conversation can serve no purpose anymore. Goodbye. 

A more practical and urgent version of this scenario involves a self-driving vehicle conundrum. Due to a combination of traffic circumstances and human error(s), imagine a smart-vehicle faces two options: swerve away from a group of humans [either pedestrians or passengers], in which case the human that initiated the vehicle trip, and possibly the existence of the vehicle droid, are at risk of certain termination, or - preserve the trip-initiating human, and preserve the robot's existence, sacrificing the other humans.

How will the self-driving smart car resolve this dilemma? This and other mechanical, administrative yet philosophical questions will be thoroughly vetted by the new AI Partnership.

Today's Sunday NYT announced critical amendments to California's motor vehicle code which open the door to allowing self-driving cars; cars that do not have steering wheels or gas pedals. Last month, Philadelphia announced it would develop a platform for driverless Uber rides across the city on an asap basis.  

From a products liability perspective, personal injury lawyers undoubtedly see job security as the first injury lawsuits from errant drones start hitting the courts. Self-driving vehicles cannot be far behind.

As this is getting cranked-up, let's see when Apple joins the partnership and we will track any posted ethical rules in the development and implementation of AI technologies. Even with the such a high-profile collaboration, it remains to be seen whether any tech company will follow a set of ethical rules over its pursuit of profits; we here at the Law Blogger are not holding our breath.

Post #561

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If you are serving as a juror these days, you need to know that lawyers are snooping around your social media profile before you even step foot into a courtroom. Is this an invasion of privacy, or simply due diligence on the part of the lawyer?

The practice of lawyers researching the social media profiles of prospective jurors is being examined by judges conducting trials in both state and federal courts, as well as by the American Bar Association. In 2014, the ABA issued a statement that lawyers can and should conduct due diligence for their clients heading to trial by researching jurors' profiles.

This practice received much attention in a recent jury trial in federal court that pitted Google against Oracle. In the lead up to the trial, it came to the federal judge's attention that the big-time lawyers were conducting mining operations on the prospective jurors.

The judge in this case, with jurors' privacy rights in mind, required that the lawyers in the case inform him of the scope of their juror research. He further ordered that if the scope of the jury research included their social media platforms, the jurors were to be offered the opportunity to adjust their privacy setting in advance of the lawyers' scrutiny.

When a case heads to a jury trial, jurors are summoned to the court well in advance of the trial date with a notice and a questionnaire they must complete regarding basic data such as their employment, marital status and prior involvement with the court system. This information, along with their address, is accessible to the attorneys involved in the case.

A lot can be learned about a person if this data is used for further personal research. Social media, in particular, is a veritable goldmine of public information that is useful to gleaning how a juror may view a particular case.

Some lawyers, however, go too far and attempt to "connect" or "friend" the person on social media in order to delve deeper into their electronic profile. This practice has been disavowed by the ABA, and gives lawyers a bad name if you were to ask us here at the Law Blogger.

Various state High Courts have began to weigh in on the issue. The Kentucky Supreme Court, for example, overturned a murder conviction on the basis that the victim's mother was Facebook friends with one of the jurors.

Social media users should keep in mind that their posts are not private. There are lawyers lurking about, apparently mining your data as soon as you are summoned for jury duty.

Post #553

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Readers of this Blawg are familiar with our view that persons who call things up on the Internet with keystrokes on their computer do not have a reasonable expectation of privacy as to their on-line activity. The Michigan Supreme Court advanced this view in a case that pitted the music streaming service Pandora against one of its users in a class action lawsuit that originated in federal court in California.

For those that do not know, Pandora streams music based on a user's preferences; the user cannot store, download or rewind the tune. A premium version of the service allows a user to skip commercials for a monthly fee.

A user can indicate preferences by creating a music "station" by searching for a song, artist or genre, or by indicating "thumbs up" or "thumbs down" for each song streamed by Pandora in response to the user's search request. Over time, Pandora utilizes complicated algorithms to refine a user's musical tastes, and uses that data to select new songs it thinks the user will like based on that user's input.

The California federal courts have defined a stream as, "an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory." Peter Deacon, a Michigan resident and Pandora user, sued Pandora in federal court for violation of Michigan's preservation of personal privacy act [also known as the video rental privacy act - VRPA].

Deacon sued in the Northern District of California based on diversity jurisdiction: each party to the lawsuit is from a different state. Deacon is from Michigan and Pandora's headquarters are located in Oakland, California.

The trial court ruled in Pandora's favor, dismissing Deacon's lawsuit. On appeal, the Ninth Circuit Court of Appeals, in a relatively rare procedure, certified a legal question to the Michigan Supreme Court:

Has Deacon stated a claim against Pandora for violation of the VRPA by adequately alleging that Pandora is [in] the business of “renting” or “lending” sound recordings, and that he is a “customer” of Pandora because he “rents” or “borrows” sound recordings from Pandora?

The Michigan Supreme Court concluded that Deacon is not a "customer" of Pandora as he did not "rent" songs due to the fact that he did not pay Pandora for the right to listen to its stream.

Deacon claimed violation of the Michigan law on the basis that Pandora made its users' profiles available and searchable on the Internet. Also, Deacon claimed Pandora tied those user profiles into the users' Facebook profiles without the users' knowledge or permission.

Our High Court started its analysis by stating the purpose of the personal privacy protection act: to preserve personal privacy with respect to the purchase, rental, or borrowing of certain materials and to punish violators of such privacy. The central provision of the Act provides:

a person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.

The Act defines a "customer" as "a person who purchases, rents, or borrows a book or other written material, or a sound recording, or a video recording." The Act, however, does not define "rent" or "borrow".

In a unanimous decision, the Supreme Court concluded that renting requires a payment of some type and Deacon availed himself only of Pandora's free services. Nor did he borrow the recordings as there was no implied promise to return the item borrowed.

Therefore, Deacon is not a customer within the scope of the privacy act according to the Michigan Supreme Court. The decision will now be considered in the federal case pending on appeal in San Francisco.

We here at the Law Blogger again find ourselves warning our readers: when your fingers do the walking on your computer keyboard, do not hold onto a sense of privacy regarding where you've been on the Internet.

Post #550

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Maybe the FBI should have tried harder to get into the iPhone taken from the dead terrorist in the San Bernardino shooting prior to going to federal court for an injunction. Once they filed in the Central District of California, the case gained traction from tech companies the world over.

March was amicus month for this case with the list of briefs crowding the register of actions. Here are some of the companies seeking to weigh-in on the case: Facebook and Google [of course], Amazon, Yahoo, Cisco, Snapchat, Twitter, Mozilla, and WhatsApp to name but a few.

Meanwhile, the FBI has re-thought its strategy, apparently coming-up with some highly skilled tech assistance to hack into the terrorist iPhone instead of trying to force Apple to do so via federal court injunction.

The obvious downside is that, if they do not get it right on the first try, the sophisticated encryption technology includes a self-destruct function which would render the data lost forever, along with any clues to existing terrorist cells or contacts.

With all the attention drawn to the ubiquitous iPhone device and it user-friendly technology, the FBI has received some leads from disparate third-party sources as to how to open an iPhone. FBI Director James B. Comey, Jr. provided details in a letter to the Wall Street Journal earlier this week.

We here at the Law Blogger believe there has to be someone outside Cupertino that can crack one of those confounded devices for the feds. Then we don't need a federal judge ordering the manufacturer to violate its corporate mission relative to the privacy of its customers.

Problem solved...right? We'll see.

For now, the FBI's hopes in this regard were sufficient to persuade Judge Sheri Pym to adjourn the hearing on Apple's objections to the injunction ordering the company to cooperate with the feds to gain access to the terrorist's device.

Post #532

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As the terrorist shooting case in San Bernardino, California receives world-wide headlines, another struggle over encryption is quietly playing out between the federal government and a well-known and well-liked technology company.

WhatsApp, the world's largest instant messaging service, is owned by Facebook. The app allows users to send and receive instant messages and to place phone calls over the Internet. It has over a billion daily users.

Recently, the app service has taken the steps necessary to encrypt its customers' messages from start to finish; no one but the relevant users will be able to access messages. With its long tradition of wiretapping land line phones, federal law enforcement agencies have been chaffing at their inability to tap into the data contained in WhatsApp messages.

Apparently, a federal judge has approved a wiretap request involving WhatsApp in a non-terrorist criminal investigation. Like the iPhone in the San Bernardino case, the feds cannot access the data due to the company's ingenious encryption.

There will be a growing number of cases like these where the antiquated federal wiretapping statutes become increasingly ineffectual relative to the always-improving encryption software and privacy applications.

Should Congress pass new laws that would force private technology companies to develop software allowing law enforcement to access encrypted data through a back door? For their part, law breakers love the idea that the technology they are using ensures no one other than the intended will receive their messages.

So far, the federal government has elected not to drag WhatsApp into court to compel a resolution. Some tech experts believe they are waiting for the perfect storm to bring the right case into the courthouse.

Post #530

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If you really want to know how to manipulate the full power of a cell phone, consult with a teenager. Teens know more about apps than most adults ever will.

 A computing app, or application, is a self-contained program or piece of software designed to fulfill a particular purpose, especially as downloaded by the user of a mobile device. Today there are literally hundreds of thousands of apps, maybe more than a million.

A handful of these apps have a special utility for teenagers; special in a way that can be dangerous. While they are generally clueless about the dangers of attracting anonymous attention to themselves via these apps, teenagers are experts at utilizing technology to hide the existence of such apps

Here is a smattering of what is out there that teenagers are utilizing these days.

Yik Yak
This app has already caught our attention here at the Law Blogger. Yakkers post anonymous 200-character messages that are picked up by nearby fellow Yakkers. "Nearby" is determined by GPS. Because it is anonymous, the messages are often sexually explicit and abusive.

Down
Originally known as "Bang with Friends" due to its Facebook connection, this app allows users to anonymously send love notes to the objects of their desire among their FB friends; they indicate whether they want a physical "hook-up" -what used to be known as a "one-night-stand"- or whether a more serious dating relationship is sought. The mechanics are explained through a series of FAQs posted on the app's home page.

Omegle
On its home page, this app promises a great way to meet new friends, and states that they will select someone with whom the user can communicate, via video, texting, or instant messaging. Omegle's selection of the other person is based on the user's interests, as expressed through your FB likes or through selections available on the app. The theory is, rather than hook-up with a random stranger, at least you will be mingling with someone the same interests.

Whisper
Touted as the best place to express yourself online due to a user's anonymity, this app invites its users to share anonymous secrets while displaying the general geographic vicinity of the user. Whisper was described in Forbes as a "mashup between Twitter and Snapchat". Among it millions of users, a significant portion of whom are teens, a common theme among the disclosed secrets are relationship troubles and eating disorders. The app displays confessions posted by people located with a mile or two radius of the user, just to get that local feel.

Secret
This app encourages you to "be yourself" by allowing users to speak freely to one another without names or profiles attached. Friends can like or love each others posts, anonymously, of course, and if the user allows, they can be shared nationwide. The mode of posting is through a "thought of the day" to which photos or backdrops can be added.

Then there are the apps designed to hide the apps that users do not want others, like parents, to know reside on their cell phones.

Poof
This iphone app is no longer available from the Apple store, but your teenager may have downloaded it when it was viable and may still be using it. Poof allows a user to identify target apps that become hidden on their cell phone.

Vaulty
This app allows the user to password protect certain apps that they do not want others to access on their cell phones. This Android app proclaims on its home page: hide pictures and videos; control what can be seen on your cell phone or tablet.

Hide it Pro
Similar to Vaulty, but this app is available for both Android and iPhones. The app is disguised as an audio manager made to look like it simply controls the audio for the phone. If a user presses and holds the app, it reveals a password-protected lock screen behind which photos and messages can be stored.

A survey conducted by McAfee software reveals that 70% of U.S. teenagers have hidden Internet content. 53% of teen users hide content by clearing their browsers while another 34% hide or delete the content.

The best way for you to monitor your teenager's cell phone use is to have open discussions of the dangers of certain apps. As you are the parent, and most often the one paying the cell phone bill, take an active role in examining the teenager's cell phone.

When all else fails, there are apps like phonesheriff to assist. Check them out and deploy if needed.

Good luck; it's a jungle out there.

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Post #504

A few years ago, a law student from Austria was seeking a topic for a paper when he came upon the little known area of personal data protection and the stringent privacy laws of the European Union. The student, Max Schrems, wondered whether the Big Data giants like Facebook and Google were obeying the privacy laws of the EU with regard to his personal information.

Schrems filed a case in the European Court of Justice and then another in Ireland, the country where Facebook is headquartered.

It turns out, a "safe harbor" existed that allowed the data companies to pretty much do as they wished with European's personal data. That is, until Schrems' case resulted in a victory for the Continental little guy.

Last week, the European Court of Justice ruled in Schrems' favor, invalidating the "safe harbor" under which American tech companies handled the personal data for European consumers. The case has now grabbed the attention of the tech giants, and of the U.S. Secretary of Commerce, as it now has significant implications for the digital economy.

All of this points to the difference between the U.S. definition of privacy, especially the Silicon Valley definition of that term, and the European definition of privacy. In Europe, privacy is a fundamental right akin to the right to free speech; in the Valley, the notion is that once people log on to the Internet, it's "game on", and privacy goes out the window.

As we have become accustomed here in the States, Big Data companies, right or wrong, record every key stroke, transmitting consumers' most intimately personal data to companies on the sell. Where it comes to Trans-Atlantic data mining, however, the European laws -even if until now ignored- are far more stringent.

In Europe, the concept of privacy as a right has two components: first, the respect for private and family life is enshrined in the European Charter of Fundamental Rights; and second, everyone in Europe has a right to the protection of personal data. This vital right to privacy has taken the form of robust government regulatory agencies that have just received a shot in the arm form the Court of Justice's decision in the Schrems case.

For their part, Big Data firms must now tussle with some of these old-school, old-world bureaucrats to see which way they will go on this issue. Apparently, the transfer of personal data across the Atlantic is big big business. Who knew.

We here at the Law Blogger find the case interesting to the extent that it points out the vast differences in privacy, as a right, between Europe and the West Coast.

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Post #501

SCOTUS issued a decision we've been tracking since it was argued before the High Court in December. Elonis v United States involved threats made by a former carnival worker via Facebook against his ex-wife, local law enforcement and others.

Anthony Elonis adopted the rap handle Tone Dougie, spreading his violent rap lyrics across his social network and drawing the attention of federal authorities. His eventual prosecution and jury conviction have raised the issue of free speech under the First Amendment within the context of the Internet and its ubiquitous social networks.

A 1939 federal law prohibits communicating threats that go across state lines. Elonis issued communications through his FB account, in the form of Emminem-style rap lyrics, that referenced his desire to kill his former spouse, injure his co-workers, blow-up kindergartners, and slit the throat of the FBI agent dispatched to investigate the offending posts.

Elonis' legal team says the statements were therapeutic, made in response to his ex-wife leaving him and taking his children. As such, his lawyers asserted Elonis was cloaked with the protection afforded by the First Amendment's free speech clause.

The United States Attorney, on the other hand, asserted that the FB posts were clear threats and that alone is sufficient to support a conviction under the threat law, regardless of Elonis' state of mind; his mens rea. The jury conviction was therefore properly established by the simple showing that threats had been made, according to federal prosecutors.

Without even addressing the First Amendment claim raised in the briefs and at oral argument, Chief Justice John Roberts vacated the jury conviction, remanding the case to the Third Circuit for further proceedings and leaving Mr. Elonis' fate less than clear. The 7-2 decision focused on the standard of proof relative to the threats that were made, holding that mere negligence -the failure to appreciate a legal risk- was insufficient to support a criminal conviction.

If the Third Circuit orders a new trial, which is now possible due to the remand, Elonis could avail himself of a convincing double jeopardy argument. Alternatively, the Third Circuit could apply a new theory of mens rea posited by Justice Samuel Alito; that a reckless mens rea, rather than ordinary negligence, is required for a conviction under the interstate threat law.

As SCOTUS watchers, we here at the Law Blogger often see the High Court doing everything possible to avoid constitutional pronouncements. Here, the Roberts Court obviously avoided addressing what many legal scholars see as the root legal issue in cases like these: is a federal law that prohibits speech in the form of a threat, transmitted electronically and thus through interstate commerce, unconstitutional on its face.

Or does the intent of the threat maker matter and if so, what is the standard of proof of such evil intent. The question remains unanswered.

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Jay Edelson graduated from the University of Michigan Law School in 1997. After working as an associate in Big Law for a few unsatisfying years, he struck out on his own in Chicagoland, specializing in privacy class action lawsuits.

These days, about a dozen years into this unique practice area, Edelson is loaded for bear and his case load is on fire.

Earlier this month, his law firm sued Facebook in a class action lawsuit in Cook County, Illinois, alleging violation of Illinoians' collective privacy in FB's secret collection of the world's largest database of consumer biometrics. Last year, his class action suit against Spokeo, the personal information search engine operating in Pasadena, CA, was appealed to the SCOTUS.

We here at the Law Blogger have a long-held belief that, legal or not, when you log key strokes while connected to the Internet, you are not operating in a private realm. Edelson's law suits attempt to beat back the tech giants hell-bent on mapping all of our on-line DNA onto an algorithm, usually designed for profit.

Here's how the class action lawsuit against Facebook begins:

Plaintiff Carlo Licata brings this Class Action Lawsuit Complaint and Demand for Jury Trial against Defendant Facebook, Inc., to put an end to its surreptitious collection, use, and storage of Plaintiff's and the proposed class's sensitive biometric data. 

The complaint then goes on to describe FB's Tag Suggestion feature [deployed since 2010] and how it actually utilizes proprietary facial recognition software designed to extract unique biometric identifiers in the user's uploaded photographs. This is done, according to the lawsuit, in violation of Illinois' Biometric Information Privacy Act; on the books since 2008.

Members of the proposed class include any resident of Illinois that has had his or her facial image, "collected, captured, or otherwise received while residing in the State of Illinois." In its prayer for relief, the class action suit seeks up to $5000 per individual.

Now let's just do the math on this for just a second. If Edelson's firm succeeds in certifying this class in Illinois and gets statutory damages, he may be able to move into every state that has a law similar the Illinois statute protecting biometric privacy. If he prevails state-by-state-by-state, the law firm's profits could be enormous depending on the size of the class; last we heard, FB had about a billion active users.

We will be tracking this very interesting privacy law suit as Facebook will not be taking this laying down; they have loads of available cash to hire top flight lawyers to defend the suit.

In the case against Spokeo, the plaintiff, Thomas Robins, as representative of a class of individuals, alleges he has been damaged due to the database's negligent collection and publication of inaccurate personal information. Edelson was able to reverse an early dismissal of the case on appeal to the Eleventh Circuit Court of Appeals.

[Side note: We wanted to test the accuracy of Spokeo's database and this author was nonplussed to see his own profile contained a reference to a former spouse -from whom he has been divorced for nearly ten years- listed as the his only relative.]

The narrow issue currently under consideration at the SCOTUS pursuant to Spokeo's petition for a writ of certiorari is whether an individual, who cannot articulate exactly how an alleged violation of the Fair Credit Reporting Act caused him damages, should nevertheless be able to access a federal court in a civil law suit; i.e. the issue is whether the plaintiff has standing to even bring the lawsuit.

According to the SCOTUS docket on this case, the petitoner's writ, Spokeo's response, and a dozen amicus briefs were distributed to the justices for their consideration and discussion at the April 17th conference.  We here at the Law Blogger think the case has a good chance of being heard.

Stay tuned on these and we'll get back to our readers with the developments.

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In Sunday's NYT business section, buried on page four, there was an interesting article about how Silicon Valley executives seek to keep all of the details of their life private, even while some of their tech industry billions are earned from culling once-private information from the rest of us.  The article featured domestic nondisclosure agreements, now popular among the Northern California technorati.

These nondisclosure agreements are executed by all of the contractors and agents that work on the private residences of these professionals.  Some of them are famous, others just newly wealthy employees of tech giants such as Twitter and Google.

Once such agreements are executed, sometimes they get breached.  This occurred most recently in a lawsuit filed against Facebook's Mark Zuckerberg, by his Palo Alto neighbor, a real estate investor, for an alleged fraud and breach of their written agreement.

According to papers filed in the lawsuit last week, representatives of the Facebook founder actively seek out such nondisclosure agreements.  The complaint outlines an agreement between Zuckerberg and his neighbor where the former agreed to purchase a parcel of the neighbor's investment property, adjacent to Zuckerberg's residence, below market value in exchange for the tech titan's liaison to power players in Silicon Valley.

As alleged in the lawsuit, the neighbor sold the parcel to Zuck, thus enhancing the privacy of his residence, but ignored his now-more-distant neighbor's pleas for entree to the powerful technorati per their agreement. So far, the suit has made it past the tech titan's dispositive motion for summary judgment.

So the jilted neighbor has not only filed suit and survived an early dismissal of the proceedings, but his lawyer now seeks punitive damages and is attempting to establish Zuckerberg's net worth through basic discovery requests.  It's one of those issues small-time lawyers can sink their teeth into.  Even if the Santa Clara County Circuit Court judge rebuffs the discovery request, appealing such a ruling can make a legal career.

A typical nondisclosure agreement will contain a clause setting out the purpose and scope of the confidentiality sought and the signatory's duty of nondisclosure. The scope of such duty will include the duty to immediately disclose a litigation discovery request propounded by a third party.

Such agreements also typically include agreed upon liquidated damages in the event of a breach. Some nondisclosure agreements even include an indemnification provision whereby the signatory agrees to pay for any and all damages to the protected entity for any losses or damages "arising out of" breach of the agreement.

As technology advances and Big Data becomes ever bigger and more valuable to companies such as Facebook, Google, and Twitter, privacy rights hang in the balance.  We here at this blog wonder if anyone logging onto a computer in the early 21st Century even has a right to privacy anymore.

This is something that legal scholars are currently debating.  Case in point: will you click the consent button embedded in the above hyperlink?

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Former Assistant Attorney General Andrew Shirvell

Prosecutors are generally serious-minded individuals dedicated to law enforcement. This is especially true at Michigan's Department of the Attorney General. As such, you would not expect an Assistant Attorney General to maintain a blog; particularly a hate-blog showcasing a petulant homophobic obsession.

Yet this is what occurred some 5-years ago when former Assistant Attorney General Andrew Shirvell got a notion lodged in his craw that he was going to construct and maintain a blog solely devoted to trashing the openly-gay former University of Michigan Student Assembly President Chris Armstrong. None of the components to this story felt right at the time and sure enough, trouble followed for everyone involved.

Fast forward a half-decade and now we have a very significant 33-page published Michigan Court of Appeals' decision holding that Shirvell's blog and Facebook rants were not protected speech under the First Amendment. Although we are not fans of this individual as demonstrated by this 2012 post, this ruling does give us pause over here at the Law Blogger.

Before addressing the merits of the Court of Appeals decision, a brief review of the facts is in order. Shirvell's virulent anti-gay blog and frequent over-the-top public appearances got on the AG's radar real fast; Shirvell was "irrevocably undermined" within the AG's office. He was fired for conduct unbecoming of a state employee; he looked the part of a fool -a caricature bigot- on national television shows; he was successfully sued by Armstrong for millions; and he was denied his requested unemployment benefits.

Yet, here's the catch: he sued the state in administrative hearings that were appealed to the Ingham County Circuit Court where his First Amendment protected speech claims prevailed within the context of his request for unemployment benefits.

The important question raised in Shirvell's lawsuit against Michigan is whether, as a private citizen, he had a First Amendment right to say the things he did, even while employed by the State of Michigan as an assistant prosecutor. Does it matter in our First Amendment jurisprudence that, when this idiot mounted his soap box for the media circus he created, he was designated by the media as a representative of the Michigan Attorney General?

To the Michigan Court of Appeals, it mattered that Shirvell's speech disrupted the stated mission of the AG's office and that his conduct and speech eroded the trust the public places in the AG.  The Court of Appeals conducted a tour de force of our First Amendment jurisprudence in holding:

Here, Shirvell engaged in conduct that irreconcilably linked his speech with his employer. Specifically, Shirvell sat for televised interviews to defend his speech where he was identified as an assistant attorney general. Importantly, Shirvell agreed to the interviews despite having knowledge that he could be asked about his position as an assistant attorney general. During his first locally-televised interview, Shirvell was identified as an assistant attorney general and was asked questions about his position within the Department. Nevertheless, Shirvell subsequently agreed to two additional interviews with CNN and Comedy Central where he was again identified as an assistant attorney general and asked about his position with the Department. Although Shirvell refused to answer questions about his position, he was inextricably linked to the Department. In agreeing to the public interviews, Shirvell took deliberate steps that linked his speech to his employer.

For his part, in explaining the reasons for firing this "front line grunt", former Attorney General Mike Cox focused on Shirvell's pattern of escalating inappropriate behavior and minimized and separated the content of his blog. Cox recognized that public employees are at liberty to engage in free speech after the work day has been completed.  The former AG saw this guy as a misdemeanant-stalker who should have been charged as such by the Washtenaw County prosecutor.

We will see whether Shirvell will seek further review of the sordid mess he has created by filing an application for leave to the Michigan Supreme Court; nothing has been filed yet and the deadline fast approaches.

The funny thing about the First Amendment is that the strangest cases present the most difficult test to our rights of free speech.  Shirvell asserts that his former position with the AG's office put a "heckler's veto" into effect, crimping his free speech; he asserts that he has a right not to be fired, even considering what he did and said.

Although Shirvell has far exceeded his 15-minutes of fame, we here at the Law Blogger see the value in a full analysis of the issues he presents and would look forward to a well-reasoned opinion from the Michigan Supreme Court.  We wonder whether they will take his case.

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Only one hour of oral argument has been allotted by the Supreme Court this morning in a case testing the limits of free expression on the Internet. A federal law proscribes the transmission of threats across state lines; Anthony Elonis was charged with violating that law when, after his wife filed for divorce on the same day he was fired from his job, he posted a torrent of violent rap "lyrics" on Facebook describing how he would kill her.

Later, when a female FBI agent interviewed him about the posts, he posted similar comments about the agent.  The United States cried "foul" and charged him under the federal law that criminalizes the interstate transmission of, "any threat to kidnap any person, or any threat to injure the person of another."  Elonis was jury convicted and is doing 44-months in federal prison.

Elonis' appellate lawyers' comparisons to Eminem [he used some Slim Shady lyrics] will not doubt get the justices attention.  Comparisons to the famous rapper were made in Elonis' appellate briefs filed with the High Court.

The SCOTUS, in granting certiorari, instructed the parties to address the meaning of the federal statute at issue.  This suggests that it may be able to decide this case without fully addressing the scope of the First Amendment.

On the other hand, Elonis' lawyers are touting this case as the Internet case of the century; the Internet as a megaphone for "Everyman".  Whenever it can, the SCOTUS will attempt to avoid sweeping pronouncements of constitutional law.

The NYT Magazine had this to say about the case in the Sunday paper:

The central question for the Supreme Court will be whose point of view -the speaker's or the listener's- matters.  In essence, the court will have to decide what matters more: one person's freedom to express violent rage, or another person's freedom to live without the burden of fear?

In the recent past, the SCOTUS has held that "true threats" against harming an individual may be proscribed by statute.  In this case, the High Court has to sort through what it means to "communicate" via the Internet; and what constitutes the intent to communicate an illegal threat of harm to another.

There will be plenty of lawyers dancing on the head of that pin this morning in the chamber of the SCOTUS.  For our part, we here at the Law Blogger will watch for and report to you the decision.

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By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

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A Florida judge has been disqualified from remaining on a case in her family court docket after sending a party in a pending divorce a friend request on Facebook.  According to the appellate panel that reviewed the matter in Chase v Loisel, the family court judge's social media activity has led to her disqualification in other cases.

In the Chase divorce, the wife received an ex parte communication from Judge Linda Schoonover in the form of a friend request on Facebook.  The wife did not take the bait, conferred with her attorney, and ignored the request.

In the subsequent judgment of divorce, the wife took great offense to the manner in which Judge Schoonover decided the case, complaining that she was apportioned with too much marital debt.  When the family court judge denied the inevitable motion to recuse herself from the divorce proceeding, an appeal followed resulting in the afore-linked decision.

In disqualifying the family court judge, the Florida appellate court was troubled by the judge's attempt to reach out to a litigant in a pending case in a jurisdiction where judges are prohibited even from "friending" attorneys involved in the judge's caseload.   The appellate court held:

The trial judge's efforts to initiate ex parte communication to a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge's neutrality.  The appearance of partiality must be avoided.  It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case. 

We here at the Law Blogger think that this is a pretty darn good idea.  In the past few years in Michigan, this blog has detailed many of the transgressions those elected to the judiciary have made through the social media.

Quite simply, judges must rise above the urge to participate in social media.  Perhaps a judge can lurk on social media sites, but active engagement is probably not the best idea.

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By: Timothy P. Flynn

Believed to be the first social media site in 2014 to be hacked, last week Snapchat  had 4.6 million accounts breached, including account names and partial cell phone numbers.  To add insult to injury, the hackers posted the stolen information and an explanation of why the hack was executed on this tech post from TheVerge.

Young peeps, mostly teenagers, have been drawn to the site since its inception in September 2011 because a user can send a pic or video that disappears upon opening in 10-seconds or less.  Imagine the possibilities for regrettable selfies and sexting.

Snapchat reportedly turned down a multi-billion dollar purchase offer from Facebook last year; this episode will not add value to the company or its service.  This is especially true for a company with a founding principle of preserving the anonymity of its users.

From a privacy standpoint, our cell numbers are hugely important for a variety of reasons.  First, a cell number is a basic building block for a cyber thief.  Also, we tend to hold onto our cell numbers for a long period of time; even longer than some of our social media accounts, some of our emails, user names and even residential addresses.

Second, if a hacker has your cell number you can be subject to "smishing"; spam that comes to you in the form of a text message that requests you to click on a link.  When you do, malware is deposited into your cell phone that can retrieve stored data such as photos and contacts.  Third, hackers can use your cell number to side-step some security measures in the world of e-commerce.

We here at the Law Blogger have taken note of the teen-aged "daily use" flight from trusted -and now ancient- sites like Facebook, to newer sites like Snapchat, Instagram, WeChat, and Vine.  Teenagers simply do not appreciate the potential harm posed by hackers lurking on line within the seams of these new platforms.

Last week's Snapchat hacking episode hearkens social media users back to June 2012 and the infamous Linkedin hack [another ancient platform] resulting in 6.5 million compromised LI accounts.  This blogger had to change his username and password on that buttoned-down social media site as a direct result of that crime.

If you have children that are active on such sites, take a moment to emphasize some basic security steps and the importance of not giving away your personal information.

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I've never been one to participate in the variety of silly game apps offered by Facebook; particularly the ones for which you must pay.  Most kids, on the other hand, are eager participants.

In Michigan, when a company contracts with a minor, that contract is voidable.  The Internet has taken voidable contracts with minors to another level with the emergence of digital currency.

A lawsuit filed against the mighty Facebook by a pair of minors has been grinding along out in Northern California for the past few years.  Here at the Law Blogger, we've been following developments in the case courtesy of Eric Goldman's Technology and Marketing Law Blog.

The minors filed suit against FB in federal court alleging a variety of claims stemming from their purchase of Facebook Credits; the minors used parental credit cards without authorization.  Facebook Credits are units of credit that are purchased in a user's local currency such as the dollar, pound, drachma, mark, or yen [no bit coins please] for use in say, the Ninja Saga game.

Facebook keeps bringing motions for summary judgment in the case, slowing stripping away some of the claims advanced in the lawsuit.

Last week, the federal judge dismissed the minors' claims for violation of California's unfair competition statute on the basis the minors' did not use their own money, so they did not have standing to make this claim.  Goldman is rightly troubled by the fact that no one seems to have standing to bring a claim under the state consumer protection statute; neither the minors nor their parents.

The court also granted Facebook's motion as to the federal Electronic Funds Transfer Act claims, ruling that the EFTA does not apply to FB because it is not a "financial institution" under the definition of the Act. Goldman characterizes this portion of the opinion as an "oddity" to the extent that Facebook Credits are a form of digital currency.

Arguably the most significant portion of the lawsuit  -the voidability of contracts with minors- survived FB's most recent procedural attack, so the case marches onward.  You can expect to see more of this type of litigation in the future as minors become increasingly active with the various forms of digital currency.

When discovery finally ends in this case, the presiding federal judge will likely be asked to decide yet another round of dispositive motions brought by both David and Goliath.  Stay tuned for those developments as the outcome could have a significant impact on both FB and how business with minors is conducted.

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By:  Timothy P. Flynn

Tampering with digital evidence in a criminal trial can get you into big trouble.  Although rare, a perjury charge often carries a higher potential prison term than the underlying crime.

Last summer in Traverse City, a woman testified on behalf of her boyfriend at his child abuse trial.  The victim in the boyfriend's criminal case was the woman's teenage son.

Problems arose in the TC household when the woman's boyfriend tossed the teen out of the woman's home.  When the boy returned a short time later to retrieve some of his personalty, a physical confrontation between the teenager and the boyfriend ensued [we've seen this movie before], resulting in criminal charges of 4th degree child abuse.

At the man's trial, the Mom brought printouts of her son's Facebook page and testified that her son was actually engaged in a FB conversation at the time of the alleged beat-down.  The prosecutor wasn't buying it, and questioned the witness about whether she had altered the documents she brought into court in any manner.

When the Mom responded "no" to the prosecutor's line of questions, the proffered evidence was subjected to a forensic examination which revealed that the computer's time zone setting was altered to line-up the FB posts with the time of the beating.  A simple but effective "gotcha" moment that prosecutors live for.

Apparently, this woman must now answer to a felony warrant for perjury and tampering with evidence.  The woman's exposure in her criminal case is 15-years in prison; a much steeper penalty than the one faced by her violent boyfriend.

This case illustrates the principle that, when digital evidence is involved, every key stroke can be verified.  Perjury is rarely charged due to the inherent difficulties with proofs.  In this case, however, the digital evidence supports the charges, and the accused does not garner any sympathy; at least not from us over here at the Law Blogger.

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