Court okays firing FDNY lieutenant who posted 911 caller info to Facebook

Palleschi v. Cassano, — N.Y.S.2d —, 2013 WL 322573 (N.Y.A.D. 1 Dept. January 29, 2013)

Petitioner — an emergency medical services supervisor and lieutenant in the New York Fire Department — admitted that he posted a picture to Facebook of a computer screen containing confidential and privileged information about a 911 caller’s complaint of a gynecological emergency. The pic also showed the caller’s name, address and telephone number.

He added the caption, “[c]an’t make this up,” apparently for his 460 friends’ enjoyment.

Petitioner sought review of the Commissioner’s decision to fire him. The court affirmed the decision. If found that in light of the serious nature of the conduct, the penalty did not shock any sense of fairness.

Online terms of service were not effective to prohibit data scraping

CollegeSource, Inc. v. AcademyOne, Inc., 2012 WL 5269213 (E.D. Pa. October 25, 2012)

paint scraping

Plaintiff sued its competitor, another platform for providing online college transfer services. Among other things, plaintiff alleged that defendant breached plaintiff’s online terms of service, violated the Computer Fraud and Abuse Act, and was unjustly enriched by copying and “scraping” course catalog information from plaintiff’s service and using that collected data to populate defendant’s own database.

Defendant moved for summary judgment on these claims. The court granted the motion.

Breach of Contract

The court held that defendant’s scraping and collection efforts did not fall within the scope of plaintiff’s online terms of service.

Although certain of defendant’s employees had subscribed to plaintiff’s premium services (and thereby agreed to tems of service that prohibited data scraping), the documents and information defendants used were gathered through a different service. Plaintiffs provided a function called “CataLink”, through which colleges could link website visitors to documents stored on plaintiff’s server. End users clicking on those links would not be presented with any terms of service by which to be bound.

Plaintiffs attempted an unsuccessful workaround on this point, arguing that the terms for the subscription services bound users of all “Services” provided by plaintiff (including the separate CataLink services). The court rejected this argument, finding it possible that a typical user may never even have known he visited a CataLink link. Moreover, the court found, if plaintiff had intended its subscriber agreement to include CataLink, it did not make its intention clear.

Unjust Enrichment

The court held that plaintiff’s unjust enrichment claim was preempted by the Copyright Act. Plaintiff asserted that defendant was unjustly enriched because it copied and displayed on its website course descriptions from plaintiff’s catalogs, and in doing so derived a financial benefit. And plaintiff argued that the facts in this case differed substantially from those required to state a claim for copyright infringement, in that defendant had misrepresented, or had taken in an underhanded way. But the court found that these elements (misrepresentation and acting underhandedly) did not avoid preemption. Nor did the element of “benefit conferred” defeat preemption, since a copyright infringer always accepts the benefit of the copyrighted work.

Computer Fraud and Abuse Act

The court found that defendant did not violate the Computer Fraud and Abuse Act, because the documents alleged to have been copied were available to the general public. And since plaintiff obtained the documents using the CataLink service — which, as discussed above was not subject to the terms of service — there were no contractual restrictions to define “without authorization” or “exceed[ing] authorized access” as used in the CFAA.

Image courtesy Flickr user fontplaydotcom under this Creative Commons license.

The day I met Neil Armstrong

I spent an afternoon with Neil Armstrong in July 1985, when I was 10 years old. He was my childhood hero. The day I met him was, up to that point, the biggest day of my life. So it has been particularly poignant for me to learn of his death earlier today.

Back then I was really into — or should I say, obsessed with — space flight and astronomy. And I had some nerd cred. My parents gave me an awesome telescope and I was among the first in my community to spot Halley’s Comet when it came around. I went to Space Camp the summer after Challenger exploded. I built and launched model rockets. I read every book about astronomy in our local library. Inspired by Gus Grissom and by Charlie Walker, NASA astronauts who hailed from my county in Indiana, I was set on being an astrophysicist and traveling into space one day. That determination was what made me resilient (or maybe just oblivious) to the jeers I got when I wore my blue NASA flight suit to school one day in fifth grade.

My parents’ good friend Ned Boyer was a fraternity brother of Neil Armstrong’s at the Phi Delt house at Purdue back in the 50’s. Ned and Neil had stayed in touch over the years, and when Ned saw how much I loved space flight and astronomy, and how I idolized the NASA astronauts, he arranged for our families to travel to Lebanon, Ohio to meet Neil.

We met Neil and his then-wife Janet at the historic Golden Lamb restaurant in Lebanon. We sat at a long table for lunch, with Neil at one head of the table, and me at the corner of the table, at his right hand. I asked him the battery of simple-minded questions that a 10 year old geeky kid would ask, like how he would describe the dust on the moon as his boot sank in. I remember also asking him about his and David Scott’s emergency undocking from the Agena during Gemini 8 — a topic on which I imagine he was interrogated less frequently than Apollo 11. In the years since meeting him, I’ve often reflected on what questions I would ask him from a mature perspective, like how does one deal with the profundity of the singular accomplishment of being the only human in the history of the world to ever have the distinction of being the first to step foot on a celestial body other than the Earth.

After lunch we decided to go see the local YMCA which at that time was either new or newly-renovated. I’m not sure of the details, but I know Neil was involved in that project somehow. Here’s the awesome part of that — I rode in the back seat of his beige station wagon while he drove us there. I remember thinking to myself how incredible it was that I was being transported at that moment by the Commander of the Eagle — the very person who uttered those eternal words, “that’s one small step for [a] man, one giant leap for mankind.” We hung out there at the YMCA for awhile longer. That’s where the picture of him and me you see above was taken.

Neil’s family issued a statement earlier today requesting that we should “honor his example of service, accomplishment and modesty.” To say he was modest is an understatement. Though he was one of the most famous people in the world — and indeed one of the most important people in all of history — he never sought to capitalize on his celebrity.

Today we lost one of the most important historical figures of our age. I put Neil Armstrong’s significance in the same category as that of Christopher Columbus. Until today we were all contemporaries of the man who accomplished one of the most meaningful things ever. Now he precedes us. Godspeed, Neil!

Social media angle on SCOTUS healthcare decision

I’ve seen three interesting social media issues arise in the hours following the Supreme Court’s decision this morning on Obamacare:

1. Premature enunciation and the ensuing bruhaha

In a rush to report on the extremely complex decision, CNN’s website briefly stated that the healthcare law had been overturned. [Screenshot] Folks on Twitter were quick to pounce, and it still seems to be kind of flying under the radar that FOX News’ side-scrolling ticker got it wrong too. The comparisons to Dewey Defeats Truman are obvious. The picture below by @garyhe captures this notion visually.

But there are a couple important differences in modern and social media versus the 1940s.

Because of the faster means to get the word out, there is even more pressure for a media outlet to be the first. (The same kind of pressure, felt by a humble blogger like me to be among the first to analyze the issues herein is making it difficult for me to type right.) And members of mainstream media are not just competing against other mainstream media participants. As @roncoleman tweeted, “[t]he central role of @SCOTUSblog in this discussion is the truly historical event occurring today.” (@SCOTUSblog’s coverage of the decision was driven largely by the work of 81-year-old Lyle Denniston.)

And it’s easy to forget that mistakes in reporting can easily be undone. Unlike the paper in the Dewey Defeats Truman situation, which had to literally stop the presses, reset the type, print out new stacks of papers and physically deliver them hours later, the CNN website was changed immediately with little human effort. And the fact that CNN got it wrong couldn’t have harmed anyone, given that there were millions of commentators on Twitter to instantly lampoon it, thereby drawing attention to the error.

2. It’s not just law professors who can be constitutional scholars

@jonathanwpeters observed the profundity of how the discourse on Twitter had become erudite by simply noting: “June 28, 2012: the day that “Commerce Clause” trended on Twitter.” But maybe that eruditeness is just a facade. @jbtaylor gives us a warning: “Brace yourself. Everyone on Twitter is about to become a Constitutional scholar.”

3. Everyone’s a comedian and all the world’s a comedy club

Probably the best part of the social media response to the decision is the humor. Here are a few of my favorite tweets that look at the farcical side of this:

  • “Remember when John Roberts botched the President’s swearing-in on Inauguration Day? I think they’re all good now.” (by @johnsberman)
  • “I felt a sudden disturbance in the Law, as if millions of nascent law review articles cried out, and were suddenly silenced.” (by @timhwang)
  • “Tea Party just turned into a massive kegger as the last spare change has gone to buy all the beer left in St. Louis ‪#wow‬ (by @mimizhusband)
  • “Now that that’s over who wants to grab a Coke and watch some porn” – Clarence Thomas (by @platypusjones)
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