Police not required to publicly disclose how they monitor social media accounts in investigations

In the same week that news has broken about how Amazon is assisting police departments with facial recognition technology, here is a decision from a Pennsylvania court that held police do not have to turn over details to the public about how they monitor social media accounts in investigations.

The ACLU sought a copy under Pennsylvania’s Right-to-Know Law of the policies and procedures of the Pennsylvania State Police (PSP) for personnel when using social media monitoring software. The PSP produced a redacted copy, and after the ACLU challenged the redaction, the state’s Office of Open Records ordered the full document be provided. The PSP sought review in state court, and that court reversed the Office of Open Records order. The court found that disclosure of the record would be reasonably likely to threaten public safety or a public protection activity.

The court found in particular that disclosure would: (i) allow individuals to know when the PSP can monitor their activities using “open sources” and allow them to conceal their activities; (ii) expose the specific investigative method used; (iii) provide criminals with tactics the PSP uses when conducting undercover investigations; (iv) reveal how the PSP conducts its investigations; and (v) provide insight into how the PSP conducts an investigation and what sources and methods it would use. Additionally, the court credited the PSP’s affidavit which explained that disclosure would jeopardize the PSP’s ability to hire suitable candidates – troopers in particular – because disclosure would reveal the specific information that may be reviewed as part of a background check to determine whether candidates are suitable for employment.

Pennsylvania State Police v. American Civil Liberties Union of Pennsylvania, 2018 WL 2272597 (Commonwealth Court of Pennsylvania, May 18, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Court takes into consideration defendant’s privacy in BitTorrent copyright infringement case

Frequent copyright plaintiff Strike 3 Holdings filed a motion with the U.S. District Court for the District of Minnesota seeking an order allowing Strike 3 to send a subpoena to Comcast, to learn who owns the account used to allegedly infringe copyright. The Federal Rules of Civil Procedure created a bootstrapping problem or, as the court called it, a Catch-22, for Strike 3 – it was not able to confer with the unknown Doe defendant as required by Rule 26(f) because it could not identify the defendant, but it could not identify defendant without discovery from Comcast.

The court granted Strike 3’s motion for leave to take early discovery, finding that good cause existed for granting the request, and noting:

  • Strike 3 had stated an actionable claim for copyright infringement,
  • The discovery request was specific,
  • There were no alternative means to ascertain defendant’s name and address,
  • Strike 3 had to know defendant’s name and address in order to serve the summons and complaint, and
  • Defendant’s expectation of privacy in his or her name and address was outweighed by Strike 3’s right to use the judicial process to pursue a plausible claim of copyright infringement.

On the last point, the court observed that the privacy interest was outweighed especially given that the court could craft a limited protective order under Federal Rule of Civil Procedure 26(c) to protect an innocent ISP subscriber and to account for the sensitive and personal nature of the subject matter of the lawsuit.

Strike 3 Holdings, LLC v. Doe, 2018 WL 2278110 (D.Minn. May 18, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Online marketer’s misappropriation claims against publicly traded former suitor move forward

Plaintiff – a small online marketing company – sued a large, publicly-traded competitor for copyright infringement, misappropriation of trade secrets, deceptive and unfair practices, and breach of contract. The parties had previously signed a nondisclosure agreement and an agreement whereby plaintiff would provide defendant with access to plaintiff’s technology used to monitor the scope of companies’ online presence and the accuracy of information appearing in search engines. The parties had also engaged in discussions about defendant acquiring plaintiff. But after the negotiations broke off, plaintiff discovered that it appeared defendant had appropriated plaintiff’s technology (including copyright-protected materials) into defendant’s own product offerings.

The lower court entered a preliminary injunction against defendant, barring it from offering the allegedly infringing and misappropriating technology. Defendant sought review of the entry of preliminary injunction with the U.S. Court of Appeals for the Eleventh Circuit. The appellate court affirmed the order.

The appellate court rejected defendant’s argument that the lower court had not described specifically enough those trade secrets of plaintiff that defendant had allegedly misappropriated. It also rejected defendant’s arguments that plaintiff’s delay in bringing suit undermined its argument of irreparable harm, that plaintiff failed to show that it was likely to succeed on the merits of its underlying claims, and that the district court erred in weighing the balance of harm and in considering the impact on the public interest.

Advice Interactive Group, LLC v. Web.com Group, Inc., 2018 WL 2246603 (11th Cir., May 16, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

No fraud claim against VRBO over bogus listing because website terms did not guarantee prescreening

Plaintiff sued the website VRBO for fraud after he used the website to find a purported vacation rental property that he paid for and later learned to be nonexistent. He specifically claimed that the website’s “Basic Rental Guarantee” misled him into believing that VRBO pre-screened the listings that third parties post to the site. The lower court granted VRBO’s summary judgment motion. Plaintiff sought review with the First Circuit Court of Appeals. On appeal, the court affirmed summary judgment, finding the guarantee was not fraudulent.

The court found the Basic Rental Guarantee was not fraudulent for a number of reasons. The document simply established a process for obtaining a refund (of up to $1,000) that involved satisfying certain conditions (e.g., having paid using a certain method, being denied a refund by the property owner, and making a claim to VRBO within a certain time). The document gave no indication that VRBO conducted any pre-screening of listed properties, but instead the document mentioned investigation that would be conducted only in the event a claim of “Internet Fraud” (as VRBO defined it) was made. And VRBO’s terms and conditions expressly stated that VRBO had no duty to pre-screen content on the website, and also disclaimed liability arising from any inaccurate listings.

Finally, the court found that the guarantee did not, under a Massachusetts statute, constitute a representation or warranty about the accuracy of the listings. Among other things, the document clearly and conspicuously disclosed the nature and extent of the guarantee, its duration, and what the guarantor undertook to do.

Hiam v. Homeaway.com, 887 F.3d 542 (1st Cir., April 12, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

No privacy violation for disclosing information otherwise available on member-only website

Plaintiff sued several defendants related to her past work as a government employee. She sought to amend her pleadings to add claims for violation of the Fourth Amendment and the federal Stored Communications Act. She claimed that defendants wrongfully disclosed private medical information about her. The court denied her motion to amend the pleadings to add the Fourth Amendment and Stored Communications Act claims because such amendments would have been futile.

Specifically, the court found there to be no violation because she had no reasonable expectation of privacy in the information allegedly disclosed. She had made that information available on a website. Though to view the information required signing up for an account, plaintiff had not set up the website to make the information available only to those she invited to view it. The court relied on several cases from earlier in the decade that addressed the issue of privacy of social media content, among them Rosario v. Clark Cty. Sch. Dist., 2013 WL 3679375 (D. Nev. July 3, 2013), which held that one has no reasonable expectation of privacy in his or her tweets, even if he or she had maintained a private account. In that case, the court held that even if the social media user maintained a private account, his tweets still amounted to the dissemination of information to the public.

Burke v. New Mexico, 2018 WL 2134030 (D.N.M. May 9, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Section 230 protected Google in lawsuit over blog post

Defendant used Google’s Blogger service to write a post – about plaintiffs’ business practices – that plaintiffs found objectionable. So plaintiffs sued Google in federal court for defamation, tortious interference with a business relationship, and intentional infliction of emotional distress. The lower court dismissed the case on grounds that the Communications Decency Act (at 47 U.S.C. §230) immunized Google from liability for the publication of third party content.

Plaintiffs sought review with the U.S. Court of Appeals for the District of Columbia. On appeal, the court affirmed the dismissal. Applying a three part test the court developed in Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014) (which in turn applied analysis from the leading case of Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)), the court held that Section 230 entitled Google to immunity because: (1) Google was a “provider or user of an interactive computer service,” (2) the relevant blog post contained “information provided by another information content provider,” and (3) the complaint sought to hold Google liable as “the publisher or speaker” of the blog post.

The court rejected defendant’s argument that in establishing and enforcing its Blogger Content Policy, Google influenced and thereby created the content it published. It held that Google’s role was strictly one of “output control” – because Google’s choice was limited to a “yes” or a “no” decision whether to remove the post, its action constituted “the very essence of publishing.” Since Section 230 immunizes online defendants against complaints seeking to hold them as the publisher of content, the lower court properly dismissed the action.

Bennett v. Google, LLC, 882 F.3d 1163 (D.C. Cir., February 23, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Plaintiff could not have agreed to arbitrate claims over website before the website was even created

Ticketmaster.com terms of use did not govern claims arising from related ticket exchange website

Plaintiff sued defendants Ticketmaster and Live Nation asserting violation of the Americans With Disabilities Act and a similar state law. He claimed that Ticketmaster’s NFL Ticket Exchange website did not provide information about wheelchair-accessible seating. Defendants filed a motion asking the court to compel the parties to arbitrate the case. The court denied the motion.

Neither party argued that the terms and conditions of the Ticket Exchange website governed the dispute between them. Defendants instead argued that the clickwrap agreement governing previous purchases defendant had made from ticketmaster.com for concerts applied to plaintiff’s use of the Ticket Exchange website.

This clickwrap agreement contained an arbitration provision that changed over time. Before November 2012, the provision contained broad language stating that the parties “agree[d] to arbitrate all disputes and claims between [them].” The language after November 2012 limited the arbitration provision to any “dispute or claim relating in any way to [plaintiff’s] use of the Site, or to products or services sold or distributed by … or through [defendants].” The definition of “Site” did not include the Ticket Exchange website.

The court rejected defendants’ arguments that the ticketmaster.com terms of service governed plaintiff’s use of the Ticket Exchange website.

The pre-November 2012 terms governed only “the use of ticketmaster.com and mobile versions thereof.” The court observed that at the time, the Ticket Exchange website did not yet exist, and that ticketmaster.com contained a “section” serving the same purpose as the now-existing Ticket Exchange website. Accordingly, the court held that plaintiff would not be deemed to have agreed to arbitrate claims relating to his use of a website before the website was even created.

As to the November 2012-onward terms, the court easily determined those did not apply, as they did, by their own terms, apply only to the Site (which did not include Ticket Exchange). And since Plaintiff had made no purchase on the Ticket Exchange website, the scope of the terms purporting to cover “products or services sold or distributed by … or through [defendants]” still failed to reach the Ticket Exchange website.

Long v. Live Nation Worldwide, 2017 WL 5194978 (W.D. Wash., November 9, 2017)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

UDRP Panel finds three letter domain name was not registered and used in bad faith

(This is a cross post from UDRP Tracker.)

UDRP complainant manufactures cameras used in science and industry, and claimed to be the sole user of the letters “PCO” in commerce. The respondent acquired the disputed domain name in 2008 and never established an active website there. The UDRP Panel refused to transfer the disputed domain name to the complainant, finding that the respondent did not regsiter and use the disputed domain name in bad faith.

In making this finding, the Panel observed:

  • Contrary to the complainant’s assertions that it was the exclusive user of the letters PCO, it is in fact common three-letter combination.
  • A number of UDRP cases about three-letter domain names show that such terms are generally in widespread use as acronyms and it is conceivable that they are registered for bona fide purposes.
  • The complainant claimed to have a stong worldwide reputation but actually operated only in a niche, so there was nothing to support the complainant’s claim that the respondent was “obviously” aware of the complainant when it acquired the disputed domain name.
  • The complainant overstated its case when it claimed that there was no conceivable good faith use to which the disputed domain name could be put.

For these reasons, despite the fact that the respondent did not reply in the action, the Panel denied the complaint.

PCO AG v. Register4Less Privacy Advocate, 3501256 Canada, Inc., WIPO Case No. D2017-1778 (October 30, 2017)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Anti-malware provider immune under CDA for calling competitor’s product a security threat

kills_bugs

Plaintiff anti-malware software provider sued defendant – who also provides software that protects internet users from malware, adware etc. – bringing claims for false advertising under the Section 43(a) of Lanham Act, as well as other business torts. Plaintiff claimed that defendant wrongfully revised its software’s criteria to identify plaintiff’s software as a security threat when, according to plaintiff, its software is “legitimate” and posed no threat to users’ computers.

Defendant moved to dismiss the complaint for failure to state a claim upon which relief may be granted. It argued that the provisions of the Communications Decency Act at Section 230(c)(2) immunized it from plaintiff’s claims.

Section 230(c)(2) reads as follows:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in [paragraph (A)].

Specifically, defendant argued that the provision of its software using the criteria it selected was an action taken to make available to others the technical means to restrict access to malware, which is objectionable material.

The court agreed with defendant’s argument that the facts of this case were “indistinguishable” from the Ninth Circuit’s opinion in in Zango, Inc. v. Kaspersky, 568 F.3d 1169 (9th Cir. 2009), in which the court found that Section 230 immunity applied in the anti-malware context.

Here, plaintiff had argued that immunity should not apply because malware is not within the scope of “objectionable” material that it is okay to seek to filter in accordance with 230(c)(2)(B). Under plaintiff’s theory, malware is “not remotely related to the content categories enumerated” in Section 230(c)(2)(A), which (B) refers to. In other words, the objectionableness of malware is of a different nature than the objectionableness of material that is obscene, lewd, lascivious, filthy, excessively violent, harassing. The court rejected this argument on the basis that the determination of whether something is objectionable is up to the provider’s discretion. Since defendant found plaintiff’s software “objectionable” in accordance with its own judgment, the software qualifies as “objectionable” under the statute.

Plaintiff also argued that immunity should not apply because defendant’s actions taken to warn of plaintiff’s software were not taken in good faith. But the court applied the plain meaning of the statute to reject this argument – the good faith requirement only applies to conduct under Section 230(c)(2)(A), not (c)(2)(B).

Finally, plaintiff had argued that immunity should not apply with respect to its Lanham Act claim because of Section 230(e)(2), which provides that “nothing in [Section 230] shall be construed to limit or expand any law pertaining to intellectual property.” The court rejected this argument because although the claim was brought under the Lanham Act, which includes provisions concerning trademark infringement (which clearly relates to intellectual property), the nature of the Lanham Act claim here was for unfair competition, which is not considered to be an intellectual property claim.

Enigma Software Group v. Malwarebytes Inc., 2017 WL 5153698 (N.D. Cal., November 7, 2017)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Facebook did not violate user’s constitutional rights by suspending account for alleged spam

constitution

Plaintiff sued Facebook and several media companies (including CNN, PBS and NPR) after Facebook suspended his account for alleged spamming. Plaintiff had posted articles and comments in an effort to “set the record straight” regarding Kellyanne Conway’s comments on the “Bowling Green Massacre”. Plaintiff claimed, among other things, that Facebook and the other defendants violated the First, Fourth, Fifth, and Fourteenth Amendments.

The court granted defendants’ motion to dismiss for failure to state a claim. It observed the well-established principle that these provisions of the constitution only apply to governmental actors – and do not apply to private parties. Facebook and the other media defendants could not plausibly be considered governmental actors.

It also noted that efforts to apply the First Amendment to Facebook have consistently failed. See, for example, Forbes v. Facebook, Inc., 2016 WL 676396, at *2 (E.D.N.Y. Feb. 18, 2016) (finding that Facebook is not a state actor for Section 1983 First Amendment claim); and Young v. Facebook, Inc., 2010 WL 4269304, at *3 (N.D. Cal. Oct. 25, 2010) (holding that Facebook is not a state actor).

Shulman v. Facebook et al., 2017 WL 5129885 (D.N.J., November 6, 2017)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

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