Geofence warrants, also known as reverse location warrants, are new to the law enforcement toolbox. Now these warrants are quickly becoming recognized by law enforcement as an effective method to gathering evidence of crime.

In some cases, evidence gathered by multi-step reverse location warrants is the only evidence available in the case. These warrants are also getting attention from the national media and soon could be heading to the SCOTUS for a show-down with our privacy rights and the Fourth Amendment's probable cause requirement.

What is a Geofence Warrant?

In recent years, police, investigating a crime with few or no clues, have increasingly turned to almighty Google to help them find the perpetrator. First, law enforcement issues a warrant to Google requesting data about any and all devices present within certain spatial and temporal parameters matching an unsolved crime.

Google then responds to the multi-step warrant by transmitting to the requesting agency a log designating -anonymously- all registered devices that fit the warrant's parameters. Law enforcement then takes that anonymous raw data and determines which code-designated devices merit further information. These suspect devices then become the subject of a second warrant to Google; more personal and identifying information is requested. [Note: the SCOTUS has already held that law enforcement must first obtain a search warrant pursuant to the Fourth Amendment prior to forcing access to a suspect's password protected cell phone.]

After providing lip service to their policy of narrowly construing such warrant requests, Google responds by tapping into its Sensorvault database, created in 2009. Sensorvault is connected to Google's "Location History" service, as well as other location-based apps such as the Web & App Activity; a separate database.

We've all noticed when our iPhones or Android devices prompt us to enable the location history function. This allows Google to provide you with directions to anywhere in the world along with many other spatially-related information services.

The first-known Geofence warrant was issued in 2017 in North Carolina. The case related to the suspected arson of a 7-story apartment complex. Raleigh Police had no leads to bolster their suspicions; for a year, their investigation bore no fruit until they requested a warrant for information from Google.

Often, judges issue such warrants under seal to protect the privacy of the many users having nothing to do with the crime being investigated. The Raleigh Police, for example, have made reverse location warrant requests in murder and sexual assault cases in addition to the arson suspect.

Google now processes hundreds of such multi-step warrants weekly; that number is expected to rise significantly as law enforcement agencies become aware of this new investigative practice. You don't have to be a tech genius to realize the significance of such warrants for law enforcement.

One of the drawbacks to securing such warrants are the significant processing delays. The multi-step reverse location warrant requests have become so numerous, Google has a separate division dealing exclusively with such requests. 8-weeks to six-month delays are not uncommon; there are also two components to the request.

Geofence Warrants Provide Circumstantial Evidence of Crime.

Law enforcement has been securing location data from a specific suspect’s or witness’ digital devices for over a decade. Reverse location warrants, however, constitute a relatively new digital dragnet for when a case has gone cold, or has no viable clues.

This new multi-step warrant process is much more comprehensive than a cell tower data dump. For decades, police and prosecutors have been using data pulled from cell phone towers to solve crimes. 

Data from cell towers is limited and incomplete relative to the Sensorvault and Web & Activity App databases. For example, Google's data is ultra-precise and historically detailed, even when a suspect or witness does not place a call on their cell. In other words, Google's data depicts every aspect of our lives, not just the patterns elicited when actual calls are placed.

Such comprehensive information about suspects and witnesses constitute a veritable treasure trove of circumstantial evidence for law enforcement. Digital location tracking of a specific Android or iPhone device can produce circumstantial evidence of a suspect’s relationship to an unsolved crime. 

In every criminal jury trial here in Michigan, circumstantial evidence is commonly defined as: 

• Facts can be proved by direct evidence from a witness or an exhibit. Direct evidence is evidence about what we actually see or hear. For example, if you look outside and see rain falling, that is direct evidence that it is raining.

• Facts can also be proved by indirect, or circumstantial, evidence. Circumstantial evidence is evidence that normally or reasonably leads to other facts. So, for example, if you see a person come in from outside wearing a raincoat covered with small drops of water, that would be circumstantial evidence that it is raining.

• You may consider circumstantial evidence. Circumstantial evidence by itself, or a combination of circumstantial evidence and direct evidence, can be used to prove the elements of a crime. In other words, you should consider all the evidence that you believe.

Judges always instruct juries that an accused can be convicted solely on the basis of circumstantial evidence. Direct evidence tends to be higher-quality evidence, but circumstantial evidence is often sufficient to convict the accused.

There are no known cases, however, where a suspect has been charged solely on the basis of a geofence warrant. An independent criminal investigation must still be conducted using the reverse location data. 

Over time, however, a case based solely on circumstantial evidence cultivated from a geofence warrant is sure to present itself to the court's. In the proper judicial and appellate hands, a sensible policy can be fashioned going forward. At present, privacy concerns, relative to the law enforcement process -as envisioned by the drafters of the 4th Amendment- is at risk. 

Geofence Warrants Raise Privacy Concerns.

There can be many legitimate –non-criminal- reasons for an individual’s presence within the parameters of a reverse location warrant. In fact, usually, all but one device has a legitimate and potentially relevant reason for leaving a particular digital footprint.

Sensorvault and the Web & Activity App contains an enormous amount of our personal data. The database contains detailed historic records of our locations -both temporal and virtual- the products we use, the products we view, the identities of our friends, and it can match-up times associated with each of these and many other minutia of our daily lives. This, of course, raises significant privacy concerns.

Sometimes, however, law enforcement simply gets it wrong. This was the case for Jorge Molina who was mistakenly charged with murder in Phoenix, Arizona a few months ago. Mr. Molina’s case was recently profiled in the New York Times.

Turns out, Molina’s mother’s boyfriend used his vehicle on occasion. So while the reverse location warrant yielded some eventual fruit for law enforcement, it disrupted Mr. Molina’s life first by violating his privacy and precipitating a week-long incarceration.

Once you are identified as a witness or suspect, turning-off your Location History, opting out, or deleting the history can also be viewed as circumstantial evidence of guilt. Such acts can be held against a suspect, just as wiping a hard drive clean is often used against an accused. Covering your tracks constitutes circumstantial evidence of guilt; or at least it will be portrayed as such by the prosecutor.

Are Multi-Step Reverse Location Warrants Constitutional?

The Fourth Amendment to the United States Constitution states that, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  One concern with multi-step reverse location warrants is their wide spatial temporal breadth. 

Particularity is required under the Fourth Amendment, which calls for a limited search based on probable cause. Most geofence warrants, on the other hand, by their nature, seek raw data covering potentially thousands of individuals over a wide-span of time. 

In addition, the two-step warrant process scoops-up scores of innocent bystanders within its dragnet. Courts usually abhor the fishing-expedition technique for issuing warrants for the main reason that fishing expeditions are not based on probable cause.

Multi-step reverse location warrants can also be technical in nature. A neutral magistrate or judge, as well as law enforcement personnel, defer to Big Data technicians to properly tailor such warrant requests and the raw data resulting from the requests. 

The NYT examined initial warrants used the first-step of the geofence warrant process. Those warrants merely sited the fact that: a) most Americans have cell phones; and b) Google possessed location data for many of those phones.

Geofence Warrants Will Become A Pervasive Law Enforcement Technique.

Reverse location warrants are becoming a well-known jackpot among federal and state criminal investigators. In addition to the increased requests, it will not take long for law enforcement to overreach, placing the process squarely before the appellate courts, on its way to the SCOTUS.

Last year’s series of bombings around Austin, Texas presented a perfect opportunity to utilize geofence warrants. A series of geofence warrants for each bomb site would yield raw anonymous data pertaining to devices around those specific bombing locations at or about the time-frame of the explosions.

This data could then be mined for patterns of activity and for the presence of a common device appearing in several locations. Federal investigators could then bring the resources of the United States to bear on identifying the patterns or the commonly present devices.

This, of course, presumes that the bomber would be simple enough to have a geo-tracking device on his or her possession when committing these crimes. These days, however, try getting off the data grid. Data is collected when your phone is turned-off; when your vehicle is turned on; and with your every key-stroke tracked.

Even if a suspect does not carry a geo-tracking device, or has an older model vehicle not wired to the Internet, the presence of potential witnesses also can be identified. Some witnesses may not even realize they were near the scene of a crime until confronted by law enforcement investigators.


We here at the Law Blogger don't see these warrant requests going away anytime soon. Nor do we anticipate Google changing its stated policy of only providing information they are required by law to provide.

We Can Help.

Our criminal defense and appellate practices have provided us with decades of experience in such matters. If you or a family member are the subject of such a warrant request, or have intersected with law enforcement in any way, give us a call to discuss your options. 

www.clarkstonlegal.com
Post #625

Martin's Beach courtesy of the LA Times

If you attempt to remove access to a good surf spot anywhere along the Southern California coastline, be prepared to spend some money. That's what billionaire Vinod Khosla, co-founder of Sun Microsystems, has vowed to do: spend his money -and he has a lot of it- to make a legal point in a significant piece of property litigation heading to the SCOTUS.

Martin's Beach is a secluded surfing spot south of Half Moon Bay in California. For more than a century, the owners of this 90-acre sand crescent provided liberal public access to the beach via a service road. In addition to the road, the owners improved the property with a parking lot, restrooms and a small store.

A decade ago, Khosla purchased all 47-cottages that sit along this prime bundle of coastal parcels for a cool $32 million. Then he promptly closed the gate to the access road, hired security, removed the restrooms, shut down the parking lot and shuttered the store. He's been in litigation ever since and the case will be argued before the SCOTUS this fall with an opinion resolving the matter -once and for all- in the spring.

The Surfrider Foundation brought the law suit that has made its way to the SCOTUS. Public access to "the beach" is enshrined in California's state constitution and in the California Coastal Act. 

Khosla, through his Martin's Beach LLC, is equating the the operation of the state constitution and the Coastal Act to an uncompensated "taking" of his property in violation of the 5th Amendment to the U.S. Constitution which provides that no private property shall be taken by the government without just compensation.

For their part, both the California Coastal Commission and San Mateo County assert that Khosla must maintain the same level of access to the beach, or obtain a permit from the county allowing him to reduce the access. California has developed a long-standing governing principle: the beach cannot be privatized.

Khosla, described in a recent NYT Sunday Business article as a typical venture capitalist -"aggressive, shamless, obsessive and optimistic", has vowed to litigate Martin's Beach for the rest of his life. At age 63, he is the latest billionaire to use his millions to seek privatization of a choice parcel of oceanfront property. Billionaire David Geffen's failed attempt at the turn-of-the-Century to close-off a chunk of Malibu comes to mind.

Along the way in this litigation, the California Coastal Commission offered Khosla $3 million to open the gate to the access road and have his security guards stand down. In rejecting the offer, Khosla, through a phalanx of lawyers, put a much higher price tag for what he sees as a compromise in principle to his privacy and his right to private ownership of property. Ironically, Khosla openly regrets ever purchasing the property and claims to have never set foot on Martin's Beach.

The case wound its way through California's state court system, culminating in a decision by the California Court of Appeal that upheld injunctive relief to beach access granted by the county trial court. Although the California Supreme Court declined further review, Khosla's highly-paid super-lawyers convinced the U.S. Supreme Court to grant certiorari.

SCOTUS, in granting certiorari to the Martin's Beach petition, now considers the following issues:

1. Whether a compulsory public-access easement of indefinite duration is a per se physical taking. 

2. Whether applying the California Coastal Act to require the owner of private beachfront property to apply for a permit before excluding the public from its private property; closing or changing the hours, prices, or days of operation of a private business on its private property; or even declining to advertise public access to its private property, violates the Takings Clause, the Due Process Clause, and/or the First Amendment. 

The case will now be briefed by the parties with several interest groups expected to weigh-in via amicus status. Stay tuned as we update you on the briefing schedule and oral argument, expected to be scheduled some time next spring.

Post #619
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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

Yesterday, students across the nation trudged back to school along with their teachers and administrators who've been back for weeks. This raises questions for us over here at the Law Blogger about whether students have any expectation of privacy; especially in their cell phones, school email accounts, and on social media platforms.

Privacy in public schools is an issue the SCOTUS has addressed many times before. Years ago, the High Court ruled that while students did have a 4th amendment right to privacy [i.e. to be free from unreasonable searches and seizures that are not based on probable cause], that right is not absolute in light of the need for safety and order in the public schools.

School administrators can, however, go too far despite the leeway they have under the law. In 2009, the Supreme Court, for example, made strip searches of students difficult to justify in most cases. But what about searching a student's cell phone data or social media platforms?

In the handful of cases addressing a student's right to privacy within the data contained on their cell phones, the SCOTUS has consistently held that such searches are not necessarily unreasonable. The basis of these holdings is the substantial governmental interest in having teachers maintain order and control of their classrooms.

The High Court has also held, however, that once a student's cell phone has been seized, the phone can be examined by administrators [i.e. state actors] to view the student's contacts and call or text history. On the other hand, one case held that using the student's phone to send text messages -presumably to set-up another student and to cement the case against the detained student- is an unreasonable search.

Although some cases involving students' and teachers' use of social media have percolated through the court system, the SCOTUS has not accepted "the case", yet. We here at the Law Blogger believe that case is out there and will be making headlines soon as it makes its way through the court system.

If you or a family member have an issue involving a teacher's seizure of a cell phone or have experienced discipline relating to a student's use of social media, contact our law firm for a free consultation.

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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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By: Timothy P. Flynn

Oakland County Undersheriff Michael McCabe told the Oakland Press this week that the surveillance device known as Hailstorm, recently acquired by the Sheriff Department for over $350,000, is a legal, constitutionally-sound, legitimate law enforcement tool.  Undersheriff McCabe said specific deployments of the device are supported by particularized search warrants and sworn law enforcement affidavits.

Nevertheless, the surveillance device is giving some of our county legislators cause for concern.  And, of course, the ACLU is looking into law enforcement's use of the device across the nation, including here in Oakland County.

Here is how it works.  The device, about the size of a suitcase, can be installed in a sedan-sized patrol vehicle, and operates essentially like a cell phone tower.  It's sole function, however, is to track and capture the metadata from targeted cell phones.

One of the troubling aspects of this newly developed technology is the highly secretive nature exhibited by both the manufacturer and the purchasers of the device; everyone involved is hiding behind the Homeland Security Act when asked about the details of how this technology works.  According to the ars technica blog:

The Hailstorm is the latest in the line of mobile phone tracking tools that Harris Corp. is offering authorities. However, few details about it have trickled into the public domain. It can be purchased as a standalone unit or as an upgrade to the Stingray or Kingfish, which suggests that it has the same functionality as these devices but has been tweaked with new or more advanced capabilities. Procurement documents show that Harris Corp. has, in at least one case, recommended that authorities use the Hailstorm in conjunction with software made by Nebraska-based surveillance company Pen-Link. The Pen-Link software appears to enable authorities deploying the Hailstorm to directly communicate with cell phone carriers over an Internet connection, possibly to help coordinate the surveillance of targeted individuals.

In addition to the Oakland County Sheriff, the police forces of Baltimore, MD and Phoenix, AZ have also acquired Hailstorm units.  Undersheriff McCabe told the Oakland Press that the Oakland County Sheriff acquired the unit from a federal grant known as the Urban Area Security Initiative [a 9/11 related grant].

Undersheriff McCabe, in his interview with OP reporter John Turk, provided assurances that only specifically targeted individuals would have their cell phone data tracked, and that this targeted surveillance was supported via search warrant.  Oakland County Commissioner Jim Runestad [R-White Lake] and State Rep. Tom McMillin [R-Rochester Hills], however, are not sleeping well at night with the Sheriff's assurances.

We here at the Law Blogger, like legislators Runestad and McMillin, and the ACLU, are concerned about the privacy of law abiding citizens.  More and more, such citizens simply do not have any reasonable expectation of privacy once they plug into the digital sphere and begin to enter data, for whatever purpose.

Apparently, if you are going to avail yourself of the post-modern smorgasbord of digitized conveniences, the price for doing so is your privacy.

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By:  Timothy P. Flynn

This post is about the rights of a now famous arrest warrant fugitive, and about each of our rights to maintain private electronic data.

The Fourth Amendment to the United States Constitution guarantees rights to all private citizens:

...to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This important amendment arose, in part, as a response to abuses of power during the American Revolution associated with the reviled "writ of assistance"; a general search warrant that allowed the King's soldiers to toss your home with or without reason.

Fast forward to the 21st Century, which opened with unprecedented foreign terrorist attacks on our soil, and we see that our "papers and effects" have been digitized.  Most of us now have fairly robust electronic profiles as opposed to actual "papers and effects".

Now, 13-years into the e-Century, and a dozen years after the fateful 9/11 attacks on New York and Washington, the federal government wants, and apparently gets, direct access to the Big Data of our private lives.  This access has been granted in the name of national security and is backed by the Patriot Act, and other powerful national security-based federal laws.

The extradition and federal prosecution of  Edward Snowden will test these opposing concepts of liberty and national security in the digital age.  Like the cases of Julian Assange and Aaron Swartz, Snowden's revelations about the federal government's snooping is becoming a digital clarion call.

Snowden, a former NSA contractor, made some significant disclosures about what the NSA has been doing, to the Guardian newspaper in London earlier in the month.  The feds have been hunting him with an international arrest warrant ever since for violations of the Espionage Act.

Apparently, Mr. Snowden is now on the move, internationally, as in Jason Bourne style.  Only this is real, not fiction.  Once the United States has Mr. Snowden either extradited or rendered back to the US, he will face criminal charges in federal court in Virginia for leaking the NSA's digital secrets to the media.

Since its inception in 1917 up to the current administration, Presidents have only charged 3 individuals with violating the Espionage Act.  President Obama has prosecuted 6 individuals under the Act.

What does this tell us about the balance between our rights to have our data secure from the prying eyes of the government, and the governments duty to protect our shores from invasion?  Can both interests be served simultaneously?

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This just in.  Illinois joins Maryland and Delaware to pass a law protecting the social media privacy of individuals from prospective employers.

Michigan also has a similar bill under consideration known as the Social Network Account Privacy Act.  The general concept of these laws is to proscribe employers or educational institutions from requiring prospects to provide account access data such as passwords or log-in information.

Many of these prospective employers are law enforcement agencies, perhaps looking to see whether their recruits have any gang connections.  Other employers seek inappropriate photos are company disparaging remarks.

This practice is widely regarded as a breach of privacy.  Further, it is a breach of the operating agreement for most sites to share a password.  While the Justice Department considers the practice of entering a social media site in violation of the site's agreement to be a federal crime; albeit, the JOD has admitted in recent congressional testimony that such crimes will, for now, go un-prosecuted.

These laws are considered by legal experts to be both pro-business and pro-privacy.  The benefits to our ever-eroding privacy are obvious.  As for business, such legislation relieves a company or educational institution from the duty of monitoring protected digital content.

We will monitor the bill currently pending in the House Committee on Energy and Technology.

www.clarkstonlegal.com

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Say it ain't so.  RadioShack may have hacked.

In an interesting privacy rights law suit being prosecuted right here in Detroit, in the U.S. District Court for the Eastern District of Michigan, Radio Shack just lost its motion for Rule 12b(6) summary judgment. 
The case, pending before Judge Victoria Roberts, now heads to trial.

The claim is that a RadioShack customer purchased a new cell phone and had his data transferred at a RadioShack store; the old phone was to be recycled.  A RadioShack employee allegedly accessed the images on the customer's old phone, saw some apparently objectionable pics from the customer taken at his place of employment, and in a "Big Brother"-like maneuver, sent the pics to the customer's employer.

The customer was fired and he is now suing RadioShack for violating his right to privacy and for breach of RadioShack's own cell phone disposal privacy policy.

Noting that very little discovery has been conducted in the case, chastizing RadioShack's counsel for raising two seminal "sufficiency-of-the-pleadings" cases in a reply brief, and intimating that questions of fact for a jury may exist, the Court denied RadioShack's motion for summary judgment.  The complete order is here.

One of the fact questions spotted by Judge Roberts was the scope of the consent the customer may have given to the store in accessing his images on his old cell phone. 

Imagine going into a RadioShack outlet to simply transfer your cell phone data [i.e. your digital life as you know it] to a new phone, and you wind-up getting fired because some entry level employee decides to police the content of your data, and forward selected portions of that data to your employer.  My guess is that this case will probably settle, and confidentially. 

In my humble yet professional opinion, RadioShack has some significant exposure on this claim.  At least they would if I was on the jury.

If you think your right to privacy has been compromised on-line and would like a free consultation to assess your potential claim, contact our law firm.

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This post is the original content of Geoff Livingston, a blogger from the Washington D.C. area recognized as a social media and blogging "expert" by the Washington Post.  His 2007 book, Now is Gone was hailed by the WSJ as a valuable resource for those interested in mining social media.

The topics of privacy and intellectual property relative to Facebook are intertwined and receive recurring attention.  Here is Geoff's recent post:

Have you read Facebook’s Statement of Rights and Responsibilities? I decided to after talking to a Facebook IP lawyer. There are some serious dangers for content marketers on Facebook:

“For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”).”

AND

“You will not tag users or send email invitations to non-users without their consent.”

If someone is using content as a means to market to their potential customers, the first statement presents huge issues. It’s clear that protecting IP is hard on Facebook given these terms.

While the same statement offers IP protections, Facebook is clearly soft on enforcement. Basically, for someone to get in trouble for using your copyrighted content without your permission, it requires someone to “repeatedly infringe” for Facebook to take action.

All in all, your content is not safe on Facebook, IMO. It’s best to use secondary services such as a blog, a video site or a photo site, and link back in if protecting copyright is an issue.

On the tagging front, I was particularly interested as this is a common form of marketing wares on Facebook, one I often interpret to be spam. Apparently, if you tag someone in a manner that they do not approve, it REALLY IS spam.

Reading the same policy, “You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.” Facebook has demonstrated it is adamant about policing spammers on its network. It is actively prosecuting abusers of its spamming policy and suing them.

In essence, if you use tags with your content or posts to market your services, you are spamming people. No ifs or ands about it. If the people who are being tagged decide to report you, it’s likely that you will find little leniency from Facebook.

The lesson for content marketers, don’t hard sell on Facebook. Tagging should be soft, clearly benefiting the community members mentioned. Otherwise it’s best to try other social network services to achieve your goals.

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