California Assembly Bill 1678 designed to protect against age discrimination gets tagged by Ninth Circuit on First Amendment grounds: IMDb.com, Inc. v. Becerra

On June 19, 2020 the Ninth Circuit Court of Appeals ruled that the content-based restrictions on speech contained within California’s Assembly Bill 1678 was facially unconstitutional because it “does not survive First Amendment scrutiny.”

I feel like if you live outside of glamorous places like California, New York and Florida, you may not be paying attention to laws being pushed by organizations like the Screen Actors Guild aka “SAG,” nevertheless … I try to keep my ear to the ground for cases that involve the First Amendment and Section 230 of the Communications Decency Act. This case happens to raise both issues, although only the First Amendment matter is addressed here.

For those that may be unfamiliar, IBDb.com is an Internet Movie Database which provides a free public website that includes information about movies, television shows, and video games. It also contains information information on actors and crew members in the industry which may contain the subject’s age or date of birth. This is an incredibly popular site, the court opinion noting that as of January of 2017 “it ranked 54th most visited website in the world.” The information on the site is generated by users (just like you and I) but IMDb does employ a “Database Content Team tasked with reviewing the community’s additions and revisions for accuracy.”

Outside of the “free” user generated section, IMDb also introduced, back in 2002, a subscription-based service called “IMDbPro” for the industry professionals (actors/crew and recruiters) to essentially act as a LinkedIn but for Hollywood – providing space for professionals to upload resume type information, headshots, etc. and casting agents could search the database for talent.

Back in 2016 apparently SAG pushed for regulation in California (which was enacted as Assembly Bill 1687) that arguably targeted IMDb, in effort to curtail alleged age discrimination in the entertainment industry. No doubt a legitimate concern (as it is in many industries) however, often good intentions result in bad law.

AB 1687 was signed into law, codified at Cal. Civ. Code § 1798.83.5 and included the following provision:

A commercial online entertainment employment service provider that enters into a contractual agreement to provide employment services to an individual for a subscription payment shall not, upon request by the subscriber, do either of the following: (1) [p]ublish or make public the subscriber’s date of birth or age information in an online profile of the subscriber [or] (2) [s]hare the subscriber’s date of birth or age information with any Internet Web sites for the purpose of publication.

Cal. Civ. Code § 1798.83.5(b)(1)-(2)

The statute also provides, in pertinent part:

A commercial online entertainment employment service provider subject to subdivision (b) shall, within five days, remove from public view in an online profile of the subscriber the subscriber’s date of birth and age information on any companion Internet Web sites under its control upon specific request by the subscriber naming the Internet Web sites.

Cal. Civ. Code § 1798.83.5(c)

The practical affect of these provisions is that it requires that subscribers of IMDbPro, be able to request that IMDb, and that IMDb, upon such request, remove the subscriber’s age or date of birth from the subscriber’s profile (which I would think they could do on their own to the extent they have control over such profile data) AND, more problematically, anywhere else on their website where such information exists regardless of who created that content. This is now extending to content the IMDbPro subscribers may not have control over as it may have been generated by third-party users of the site.

The Court opinion explained that “[b]efore AB 1687 took effect, IMDb filed a complaint under 42 U.S.C § 1983 in the Northern District of California to prevent its enforcement. IMDb alleged that AB 1687 violated both the First Amendment and Commerce Clause of the Constitution, as well as the Communications Decency Act, 47 U.S.C. § 230(f)(2).” While there was much back and forth between the parties, the crux of the debate, and crucial for the appeal was the debate over the language prohibiting IMDb’s ability to publish the age of information without regard to the source of the information.

When considering the statutory language restricting what could be posted the Court of Appeals concluded:

  • AB 1687 implemented content-based restriction on speech (i.e., dissemination of date of birth or age) that is subject to First Amendment scrutiny.
  • AB 1687 did not present a situation where reduced protection would apply (e.g., where the speech at issue is balanced against a social interest in order and morality).
    • IMDb’s content did not constitute Commercial Speech.
    • IMDb’s content did not facilitate illegal conduct.
    • IMDb’s content did not implicate privacy concerns.
  • AB 1687 does not survive strict scrutiny because it was not the least restrictive means to accomplish the goal and it wasn’t narrowly tailored.

In conclusion the Court articulated a position that I wholly agree with: “Unlawful age discrimination has no place in the entertainment industry, or any other industry. But not all statutory means of ending such discrimination are constitutional.”

Citation: IMDb.com, Inc. v. Becerra, Case Nos. 18-15463, 18-15469 (9th Cir. 2020)

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

Facebook’s Terms of Service set jurisdiction for litigation – We Are the People, Inc. v. Facebook, Inc.

A common mistake, and arguably a waste of time, is to attempt to bring a breach of contract litigation in a jurisdiction other than the jurisdiction that the contract states. Years ago I wrote an article about the importance of boilerplate terms. One of the very first points I discuss is choice of law/choice of forum clauses.

Most people who are entering into a contract read the contract before they sign their name. Curiously, this doesn’t seem to translate when people are signing up for a website or app. I actually wrote about this too, warning people that they are responsible for their own actions when it comes to website Terms of Service and that they should read them before they sign up. Alas, we’re all human and the only real time people tend to look at the Terms of Service (i.e., the use contract) is when the poo has hit the fan. Even then, the first thing most people look at (or should look at if they are considering litigation) is the choice of law provisions.

In this instance, Plaintiff’s brought a lawsuit against Facebook in the Southern District of New York alleging that Facebook’s removal of content from Facebook’s pages violated Facebook’s “contractual and quasi-contractual obligations to keep Plaintiffs’ content posted indefinitely.” Anyone who has ever used Facebook would likely realize that the “contract” being discussed would stem from their Terms of Service. Facebook filed a motion to dismiss based upon Section 230 of the Communications Decency Act or, alternatively, to transfer venue.

Why would Facebook want to transfer venue? Because arguably California has better law for them. California has a strong anti-SLAPP law codified at Cal. Civ. Proc. § 425.16 (which applies to many cases that Facebook is likely to be named in) and many Section 230 cases have been ruled upon favorably to platforms. As such, Facebook’s Terms of Service contains a forum selection clause that requires any disputes over the contract be heard by a court in California; more specifically, exclusively in the Northern District of California (or a state court located in San Mateo County).

As I see it, these Plaintiffs either didn’t bother to read that part of the Terms of Service or they wanted to roll the dice and see if Facebook wouldn’t notice (Pro-tip: fat chance of that working). Regardless of the rationale, on June 3, 2020 the court quickly sided with Facebook ruling that the Terms of Service forum selection clause was “plainly mandatory” absent some showing that such clause was unenforceable (which Plaintiffs failed to do and, according to the Court, could not do in this particular circumstance (given Defendants’ memorandum of law) and Facebook’s Motion to Transfer was granted.

Citation: We Are the People, Inc. v. Facebook, Inc., Case No. 19-CV-8871 (JMF) (S.D. N.Y. 2020)

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

Section 230, the First Amendment, and You.

Maybe you’ve heard about “Section 230” on the news, or through social media channels, or perhaps by reading a little about it through an article written by a major publication … but unfortunately, that doesn’t mean that the information that you have received is necessarily accurate. I cannot count how many times over the last year I’ve seen what seems to be purposeful misstatements of the law … which then gets repeated over and over again – perhaps to fit some sort of political agenda. After all, each side of the isle so to speak is attacking the law, but curiously for different reasons. While I absolutely despise lumping people into categories, political or otherwise, the best way I can describe the ongoing debate is that the liberals believe that there is not enough censoring going on, and the conservatives think there is too much censorship going on. Meanwhile, you have the platforms hanging out in the middle often struggling to do more, with less…

In this article I will try to explain why I believe it is important that even lay people understand Section 230 and dispel some of the most common myths that continually spread throughout the Internet as gospel … even from our own Congressional representatives.

WHY LAY PEOPLE SHOULD CARE ABOUT SECTION 230

Not everyone who reads this will remember what it was like before the Internet. If you’re not, ask your elders what it was like to be “talked at” by your local television news station or news paper. There was no real open dialog absent face to face or over the telephone communications. Your audience was limited who you would get to share information with. Even if you wrote a “letter to the Editor” at a local newspaper it didn’t mean that your “opinion” was necessarily going to be posted. If you’re old end enough to remember that, and are nodding your head in agreement … I encourage you to spend some time remembering what that was like.

If you like being able to share information freely, and to comment on information freely, you absolutely should care about what many refer to as “Section 230.” So many of my friends, family and colleagues say “I don’t understand Section 230 and I don’t care to … that’s your space” yet these are the people that I see posting content online about their business via LinkedIn or other social media platforms, sharing reviews of businesses they have been to, looking up information on Wikimedia, sharing their general opinion and/or otherwise dialog and debate over topics that are important to them, etc. In a large way, whether you know it or not, Section 230 has powered your ability to interact online in this way and has drastically shaped the Internet as we know it today.

IN GENERAL: SECTION 230 EXPLAINED

The Communications Decency Act (47 U.S.C. § 230) (often referred to as “Section 230” or “CDA”), in brief, is a federal law enacted in 1996 that, with a few exceptions carved out within the statute, protects the owners of websites/search engines/applications (each often synonymously referred to as “platforms”) from liability from third-party content.  Generally speaking, if the platform didn’t actually create the content, they traditionally aren’t liable for it. Indeed, there are a few exceptions, but for now, we’ll keep this simple. Platforms that allow third-party content are often referred to as user generated content (“UGC”) sites.  Facebook, Twitter, Snapchat, Reddit, TripAdvisor, and Yelp are all examples of such platforms and reasonable minds would likely agree that there is social utility behind each of these sites. That said, these household recognized platform “giants” aren’t the only platforms on the internet that have social utility and benefit from the CDA.  Indeed, it covers all of the smaller platforms, including bloggers or journalists who desire to allow people to comment about articles/content on their websites.

If you’re looking for some sort of a deep dive on the history of the law, I encourage you to pick up a copy of Jeff Kosseff’s book titled The Twenty-Six Words That Created The Internet.

ONGOING “TECHLASH” WITH SECTION 230 IN THE CROSS-HAIRS

One would be entirely naive to even suggest that the Internet is perfect. If you ask me, it’s far from perfect. I readily concede that indeed there are harms that happen online. To be fair, harms happen offline too and they always have. Sometimes humans just suck. I’ve discussed a lot of this in my ongoing blog article series Fighting Fair on the Internet. What has been interesting to me is that many seem to want to blame people’s bad behavior on technology and to try and hold technology companies liable for what bad people do using their technology.

I look at technology as a tool. By analogy, a hammer is a tool yet we don’t hold the hammer manufacturing company or the store that sold the hammer to the consumer liable when a bad guy goes and beats someone to death with it. I imagine the counter-argument is that technology is in the best position to help stop the harms. Perhaps that may be true to a degree (and I believe many platforms do try to assist by moderating content and otherwise setting certain rules for their sites) but the question becomes, should they actually be liable? If you’re a Section 230 “purist” the answer is “No.” Why? Because Section 230 immunizes platforms from liability for what other people say or do on their platforms.

The government, however, seems to have its’ own set of ideas. We already saw an amendment to Section 230 with FOSTA (the anti-sex trafficking amendment). Unfortunately, good intentions often make for bad law, and, in my opinion, FOSTA was one of those laws which has been arguably proven to cause more harm than good. I could explain why, but I’ll save that discussion for another time.

Then, in February of this year, the DOJ had a “workshop” on Section 230. I was fortunate enough to be in the audience in Washington, D.C. where it was held and recently wrote an article breaking down that “workshop.” If you’re interested in all the juicy details, feel free to read that article but in summary it basically was four hours’ worth of : humans are bad and do bad things; technology is a tool in which bad humans do bad things; technology/platforms need to find a way to solve the bad human problem or face liability for what bad humans occasionally do with the tools they create; we want to make changes to the law even though we have no empirical evidence to support the position that this is an epidemic rather than a minority…because bad people.

Shortly thereafter the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 or EARN IT Act of 2019-2020 Bill was dropped which is designed to prevent the online sexual exploitation of children. While this sounds noble (FOSTA did too) when you unpack it all, and look at the bigger picture, it’s more government attempts to mess with free speech and online privacy/security in the form of yet another amendment to Section 230 under the guise of being “for the children.” I have lots of thoughts on this, but I will save this for another article another day too.

This brings us to the most recent attack on Section 230. The last two (2) weeks have been a “fun” time for those of us who care about Section 230 and its application. Remember how I mentioned above that some conservatives are of the opinion that there is too much censorship online? This often refers to the notion that social media platforms (Facebook, Twitter, and even Google) censor or otherwise block conservative speech. Setting aside whether this actually happens or not (I’ve heard arguments pointing both directions on this issue) President Trump shined a big old light on this notion recently.

Let me first state off by saying that there is a ton of misinformation that is shared online. It doesn’t help that many people in society will quickly share things without actually reading it or conducting research to see if the content they are sharing has any validity to it but will spend 15 minutes taking a data mining quiz only to find out what kind of a potato they are. Who knew the 2006 movie Idiocracy was going to be so prophetic?

Along with other perceived harmful content, platforms have been struggling with how to handle such misinformation. Some have considered adding more speech by way of notifications or “labels” as Twitter calls them, to advise their users that the information may be wholly made up or modified, shared in a deceptive manner, likely to impact public safety or otherwise cause serious harm. Best I could tell, at least as far as Twitter goes, this seems to be a relatively new effort. Side note: While ideal in a perfect world, I’m not personally a fan of social media platforms fact checking because: 1) it’s very hard to be an arbiter of truth; 2) it’s incredibly hard to do it at scale; 3) once you start, people will expect you to do it on every bit of content that goes out – and that’s virtually impossible; and 4) if you fail to fact check something that turns out to be false or otherwise misleading, one might assume that such content is accurate because they come to rely on the fact checking.

So what kicked off the latest “Section 230 tirade”? Twitter “fact checked” President Trump in two different tweets on May 26th, 2020 by adding in a “label” to the bottom of the Tweets (which you have to click on to actually see – they don’t transfer when you embed them as I’ve done here) that said “Get the facts about mail-in-ballots.” This clearly suggests that Twitter was in disagreement with information that the President Tweeted and likely wanted its users to be aware of alternative views.

To me, that doesn’t seem that bad. I can see some validity to President Trump’s concern. I can also see an alternative argument, especially since I typically mail in my voting ballot. If you think about it, pretty much everything that comes out of a politician’s mouth is subjective. Nevertheless, President Trump got upset over the situation and then suggested that Twitter was “completely stifling FREE SPEECH” and then made veiled threats about not allowing that to happen.

If we know anything about this President, it is that when he’s annoyed with something, he will take some sort of action. President Trump ultimately ended up signing an Executive Order on “Preventing Online Censorship” a mere two (2) days later. For those that are interested, while certainly left leaning, and non-favorable to our commander in chief, Santa Clara Law Professor Eric Goldman provided a great legal analysis of the Executive Order, calling it “political theater.” Even if you align yourself with the “conservative” base, I would encourage you to set aside the Professor’s personal opinions (we all have opinions) and focus on the meat of the legal argument. It’s good.

Of course, and as expected, the Internet looses its mind and all the legal scholars and practitioners come out of the woodwork, commenting on Section 230 and the newly signed Executive Order, myself included. The day after of the Executive Order was signed (and likely President Trump read all the criticisms) he Tweeted out “REVOKE 230!”

So this is where I have to sigh heavily. Indeed there is irony in the fact that the President is calling for the revocation of the very same law that allowed innovation and Twitter to even become a “thing” and which also makes it possible for him to reach out and connect to millions of people, in real time, in a pretty much unfiltered way as we’ve seen, for free because he has the application loaded on his smart phone. In my opinion, but for Section 230, it is entirely possible Twitter, Facebook and all the other forms of social media and interactive user sites would not exist today; at least not as we know it. Additionally, I find it ironic that President Trump is making free speech arguments when he’s commenting about, and on, a private platform.

As I said though, this attack on Section 230 isn’t just stemming from the conservative side. Even Joe Biden has suggested that Section 230 should be “repealed immediately” but he’s on the whole social media companies censor too little train which is completely opposite of the reasons that people like President Trump wants it revoked.

HOW VERY AMERICAN OF US

How many times have you heard that American’s are self centered jerks? Well, Americans do love their Constitutional rights, especially when it comes to falling in love with their own opinions and the freedom to share those opinions. Moreover, when it comes to the whole content moderation and First Amendment debate, we often look at tech giants as purely American companies. True, these companies did develop here (arguably in part thanks to Section 230) however, what many people fail to consider is that many of these platforms operate globally. As such, they are often trying to balance the rules and regulations of the U.S. with the rules and regulations of competing global interests.

As stated, Americans are very proud of the rights granted to them, including the First Amendment right to free speech (although after reading some opinions lately I’m beginning to wonder if half the population slept through or otherwise skipped high school civics class … or worse, slept through Constitutional Law while in law school). However, not all societies have this speech right. In fact, Europe’s laws value the privacy as a right, over the freedom of expression. A prime example of this playing out is Europe’s Right to Be Forgotten law.

When we demand that these tech giants cater to us, here in the United States, we are forgetting that these companies have other rules and regulations that they have to take into consideration when trying to set and implement standards for their users. What is good for us here in the U.S. may not be good for the rest of the world, which are also their customers.

SECTION 230 AND FIRST AMENDMENT MYTHS SPREAD LIKE WILDFIRE

What has been most frustrating to me, as someone who practices law in this area and has a lot of knowledge when it comes to the business of operating platforms, content moderation, and the applicability of Section 230, is how many people who should know better get it wrong. I’m talking about our President, Congressional representatives, and media outlets … so many of them, getting it wrong. And what happens from there? You get other people who regurgitate the same uneducated or otherwise purposefully misstatements in articles that get shared which further perpetuates the ignorance of the law and how things actually work.

UPDATED: For example, just today Jeff Kosseff Tweeted out a thread that describes a history of the New York Times failing to accurately explain Section 230 in various articles and how one of these articles ended up being quoted by a NJ federal judge. It’s a good thread. You should read it.

MYTH: A SITE IS EITHER A “PLATFORM” OR A “PUBLISHER”

Contrary to so many people I’ve listened to speak, or articles that I’ve read, when it comes to online UGC platforms, there is no distinction between “publisher” and a “platform.”  You aren’t comparing the New York Times to Twitter.  Working for a newspaper is not like working for a UGC platform.  Those are entirely different business models … apples and oranges. Unfortunately, that’s another spot where many people, like this author, get caught up and confused. 

UGC platforms are not in the business of creating content themselves but rather in the business of setting their own rules and allowing third-parties (i.e., you and I here on this platform) to post content in accordance with those rules.  Even for those who point to some publications erring on the side of caution on 2006-2008 re editing UGC comments doesn’t mean that’s how the law actually was interpreted.  We have decades worth of jurisprudence interpreting Section 230 (which is what the judicial branch does – interprets the law, not the FCC which is an independent organization overseen by Congress).  Platforms absolutely have the right to moderate the content which they did not create and kick people off of their platform for violation of their rules. 

Think if it this way – have you ever heard your parents say (or maybe you’ve said this to your own kids) “My house, my rules.  If you don’t like the rules, get your own house.”  If anyone actually researches the history, that’s why Section 230 was created … to remove the moderator’s dilemma.  A platform’s choice of what to allow, or disallow, has no bearing (for the sake of this argument here) on the applicability of Section 230.  Arguably, UGC platforms also have a First Amendment right to choose what they want to publish, or not publish.

MYTH: PLATFORMS HAVE TO BE NEUTRAL FOR SECTION 230 TO APPLY

Contrary to the misinformation being spewed all over (including by government representatives – which I find disappointing) Section 230 has never had a “neutrality” caveat for protection.  Moreover, in the context of the issue of political speech, Senator Ron Wyden, who was a co-author for the law even stated recently on Twitter “let me make this clear: there is nothing in the law about political neutrality.” 

You can’t get much closer to understanding Congressional intent of the law than getting words directly from the co-author of the law. 

Quite frankly, there is no such thing as a “neutral platform.”  If there were, as someone that deals with content escalations for platforms, I can tell you that we would have a very UGLY Internet because sometimes people just suck.

MYTH: CENSORSHIP OF SPEECH BY A PLATFORM VIOLATES THE FIRST AMENDMENT

The First Amendment absolutely protects the freedom of speech.  In theory, you are free to put on a sandwich board that says (insert whatever you take issue with) and walk up and down the street if you want.  In fact, we’re seeing such constitutionally protected demonstrations currently with the protesters all over the country in connection to the death of George Floyd. Such peaceful demonstration is absolutely protected under the First Amendment. 

What the First Amendment does not do (and this seems to get lost on people for some reason) is give one the right to amplification of that speech on a private platform.  One might wish that were the case, but wishful thinking does equal law. Unless and until there is some law, that passes judicial scrutiny, which deems these private platforms a public square subject to the same restrictions that is imposed on the government, they absolutely do not have to let you say everything and anything you want. Chances are, this is also explained in their Terms of Service, which you probably didn’t read, but you should.

If you’re going to listen to anyone provide an opinion on Section 230, perhaps one would want to listen to a co-author of the law itself:

Think of it this way, if you are a bar owner and you have a drunk and disorderly guy in you bar that is clearly annoying your other customers, would you want the ability to 86 the person or do you want the government to tell you that as long as you are open to the public you have to let that person stay in your bar even if you risk losing other customers because someone is being obnoxious? Of course you want to be able to bounce that person out! It’s not really any different for platform operators.

LET’S KEEP THE CONVERSATION GOING BUT NOT MAKE RASH DECISIONS

Do platforms have the best of both worlds … perhaps.  But what is worse?  The way it is now with Section 230 or what it would be like without Section 230?  Frankly, I choose a world with Section 230.  Without Section 230, the Internet as we know it will change. 

While we’ve never seen what the Internet looks like without Section 230 I can imagine we would go to one of two options: 1) an Internet where platforms are afraid to moderate content and therefore everything and anything would go up, leaving us with a very ugly Internet (because people are unfathomably rude and disgusting – I mean, content moderators have suffered from PTSD for having to look at what nasty humans try to share); or 2) an Internet where platforms are afraid of liability and either UGC sites will cease to exist altogether or they may go to a notice and take down model where as soon a someone sees something they are offended by or otherwise don’t like, they will tell the platform the information is false, defamatory, harassing, etc. and that content would likely automatically come down. The Internet, and public discussion, will be at the whim of a heckler’s veto. You think speech is curtailed now? Just wait until the society of “everyone is offended” gets a hold of it.

As I mentioned to begin with, I don’t think that the Internet is perfect, but neither are humans and neither is life. While I believe there may be some concessions to be had, after in-depth studies and research (after all, we’ve only got some 24 years of data to work with and those first years really don’t count in my book) I think it foolish to be making rash decisions based upon political agendas. If the politicians want their own platform where they aren’t going to be “censored” and the people have ease of access to such information … create one! That’s what is great about this country … we have the ability to innovate … well, at least for now.

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

Breaking down the DOJ Section 230 Workshop: Stuck in the Middle With You

The current debate over Section 230 of the Communications Decency Act (47 U.S.C. § 230) (often referred to as “Section 230” or “CDA”) has many feeling a bit like the lyrics from Stealers Wheel – Stuck in The Middle With You, especially the lines where it says “clowns to the left of me, jokers to my right, here I am stuck in the middle with you.” As polarizing as the two extremes of the political spectrum seem to be these days, so are the arguments about Section 230.  Arguably the troubling debate is compounded by politicians who either don’t understand the law, or purposefully make misstatements about the law in attempt to further their own political agenda.

For those who may not be familiar with the Communications Decency Act, in brief, it is federal law enacted in 1996 that, with a few exceptions carved out within the statute, protects the owners of websites/search engines/applications (each often synonymously referred to as “platforms”) from liability from third-party content.  Platforms that allow third-party content are often referred to as user generated content (“UGC”) sites.  Facebook, Twitter, Snapchat, Reddit, TripAdvisor, and Yelp are all examples of such platforms and reasonable minds would likely agree that there is social utility behind each of these sites. That said, these household recognized platform “giants” aren’t the only platforms on the internet that have social utility and benefit from the CDA.  Indeed, it covers all of the smaller platforms, including bloggers or journalists who desire to allow people to comment about articles/content on their websites. 

So, what’s the debate over?  Essentially the difficult realities about humans and technology.  I doubt there would be argument over the statement that the Internet has come a long way since the early days of CompuServe, Prodigy and AOL. I also believe that there would be little argument that humans are flawed.  Greed was prevalent and atrocities were happening long before the advent of the Internet.  Similarly, technology isn’t perfect either.  If technology were perfect from the start, we wouldn’t ever need updates … version 1.0 would be perfect, all the time, every time.  That isn’t the world that we live in though … and that’s the root of the rub, so to speak.

Since the enactment of the CDA, an abundance of lawsuits have been initiated against platforms, the results of which further defined the breadth of the law.  For those really wanting to learn more and obtain a more historical perspective on how the CDA came to be, one could read Jeff Kosseff’s book called The Twenty Six Words That Created the Internet.  To help better understand some of the current debate over this law which will be discussed shortly, this may be a good opportunity to point out a few of the (generally speaking) practical implications of Section 230:

  1. Unless a platform wholly creates or materially contributes to content on its platform, it will not be held liable for the content created by a third-party.  This immunity from liability has also been extended to other tort theories of liability where it is ultimately found that such theory stems from the third-party content.
  2. The act of filtering content by a platform does not suddenly transform it into a “publisher” aka the person that created the content in the first place, for the purposes of imposing liability.
  3. A platform will not be liable for their decision to keep content up, or take content down, regardless of whether such information may be perceived as harmful (such as content alleged to be defamatory). 
  4. Injunctive relief (such as a take down order from a court) is legally ineffective against a platform if such order relates to content that they would have immunity for.

These four general principals are the result of litigation that ensued against platforms over the past 23+ years. However, a few fairly recent high-profile cases stemming from atrocities, and our current administration (from the President down), has put Section 230 in the crosshairs and desires for another amendment.  The question is, amendment for what?  One side says platforms censor too much, the other side says platforms censor too little, platforms and technology companies are being pressured to  implement stronger data privacy and security for their users worldwide while the U.S. government is complaining about measures being taken are too strong and therefore allegedly hindering their investigations.  Meanwhile the majority of the platforms are singing “stuck in the middle with you” trying to do the best they can for their users with the resources they have, which unless you’re “big Internet or big tech” is typically pretty limited.  And frankly, the Mark Zuckerberg’s of the world don’t speak for all platforms because not all platforms are like Facebook nor do they have the kind of resources that Facebook has.  When it comes to implementation of new rules and regulations, resources matter.

On January 19, 2020 the United States Department of Justice announced that they would be hosting a “Workshop on Section 230 of the Communications Decency Act” on February 19, 2020 in Washington, DC.  The title of the workshop “Section 230 – Nurturing Innovation or Fostering Unaccountability?”  The stated purpose of the event was to “[D]iscuss Section 230 … its expansive interpretation by the courts, its impact on the American people and business community, and whether improvements to the law should be made.”  The title of the workshop was intriguing because it seemed to suggest that the answer was one or the other when the two concepts are not mutually exclusive.

On February 11, 2020 the formal agenda for the workshop (the link to which has since been removed from the government’s website) was released.  The agenda outlined three separate discussion panels:

  • Panel 1:  Litigating Section 230 which was to discuss the history, evolution and current application of Section 230 in private litigation;
  • Panel 2: Addressing Illicit Activity Online which was to discuss whether Section 230 encourages or discourages platforms to address online harms, such as child exploitation, revenge porn, and terrorism, and its impact on law enforcement; and
  • Panel 3: Imagining the Alternative which was to discuss the implications on competition, investment, and speech of Section 230 and proposed changes. 

The panelists were made up of legal scholars, trade associations and a few outside counsel who represent plaintiffs or defendants.  More specifically, the panels were filled with many of the often empaneled Section 230 folks including legal scholars like Eric Goldman, Jeff Kosseff; Kate Klonik, Mary Ann Franks, and staunch anti- Section 230 attorney Carrie Goldberg, a victim’s rights attorney that specializes in sexual privacy violations.  Added to the mix was also Patrick Carome who is famous for his Section 230 litigation work, defending many major platforms and organizations like Twitter, Facebook, Google, Craigslist, AirBnB, Yahoo! and the Internet Association.  Other speakers included Annie McAdams, Benjamin Zipupsky, Doug Peterson, Matt Schruers, Yiota Souras, David Chavern, Neil Chilson, Pam Dixon, and Julie Samuels.

A review of the individual panelist’s bios would likely signal that the government didn’t want to include the actual stakeholders, i.e., representation from any platform’s in-house counsel or in-house policy.  While not discounting the value of the speakers scheduled to be on panel, one may find it odd that those who deal with the matters every day, who represent entities that would be the most impacted by modifications to Section 230, who would be in the best position to determine what is or is not feasible to implement in the terms of changes, if changes to Section 230 were to happen, had no seat at the discussion table.  This observation was wide spread … much discussion on social media about the lack of representation of the true “stakeholders” took place with many opining that it wasn’t likely to be a fair and balanced debate and that this was nothing more than an attempt by U.S. Attorney General William Barr to gather support for the bill relating to punishing platforms/tech companies for implementing end-to-end encryption.  One could opine that the Bill really has less to do with Section 230 and more to do with the Government wanting access to data that platforms may have on a few perpetrators who happen to be using a platform/tech service.

If you aren’t clear on what is being referenced above, it bears mentioning that there is a Bill titled “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2019” aka “EARN IT Act of 2019” that was proposed by Senator Lindsey Graham.  This bill came approximately two weeks after Apple was ordered by AG Barr to unlock and decrypt the Pensacola shooter’s iPhone.  When Apple responded that they couldn’t comply with the request, the government was not happy.  An article written by CATO Institute stated that “During a Senate Judiciary hearing on encryption in December Graham issued a warning to Facebook and Apple: ‘this time next year, if we haven’t found a way that you can live with, we will impose our will on you.’”  Given this information, and the agenda topics, the timing of the Section 230 workshop seemed a bit more than coincidence.  In fact, according to an article in Minnesota Lawyer, Professor Eric Goldman pointed out that the “DOJ is in a weird position to be convening a roundtable on a topic that isn’t in their wheelhouse.”

As odd as the whole thing may have seemed, I had the privilege of attending the Section 230 “Workshop”.  I say “workshop” because it was a straight lecture without the opportunity for there to be any meaningful Q&A dialog from the audience.  Speaking of the audience, of the people I had direct contact with, the audience consisted of reporters, internet/tech/first amendment attorneys, in-house counsel/representatives from platforms, industry association representatives, individual business representatives, and law students.  The conversations that I personally had, and personally overheard, was suggestive that the UGC platform industry (the real stakeholders) were all concerned or otherwise curious about what the government was trying to do to the law that shields platforms from liability for UGC.

PANEL OVERVIEW:

After sitting through nearly four hours’ worth of lecture, and even though I felt the discussion to be a bit more well-rounded than I anticipated, I still feel that the entire workshop could be summarized as follows: “humans are bad and do bad things; technology is a tool in which bad humans do bad things; technology/platforms need to find a way to solve the bad human problem or face liability for what bad humans occasionally do with the tools they create; we want to make changes to the law even though we have no empirical evidence to support the position that this is an epidemic rather than a minority…because bad people.”

Perhaps that is a bit of an oversimplification but honestly, if you watch the whole lecture, that’s what it boils down to.

The harms discussed during the different panels included:

  • Libel (brief mention)
  • Sex trafficking (Backpage.com, FOSTA, etc.)
  • Sexual exploitation of children (CSAM)
  • Revenge porn aka Non-Consensual Pornography aka Technology Facilitated Harassment
  • Sale of drugs online (brief mention)
  • Sale of alleged harmful products (brief mention)
  • Product liability theory as applied to platforms (ala Herrik v. Grindr)

PANEL #1:

In traditional fashion, the pro-Section 230 advocates explained the history of the CDA, how it is important to all platforms that allow UGC, not just “big tech” and resonated on the social utility of the Internet … platforms large and small.  However, the anti-Section 230 panelists pointed to mainly harms caused by platforms (though not elaborated on which ones) by not removing sexually related content (though defamation was a short mention in the beginning). 

Ms. Adams seemed to focus on sex trafficking – touching on how once Backpage.com was shut down that a similar close site started up in Amsterdam. She referred to the issues she was speaking about as a “public health crisis.” Of course, Ms. Goldberg raised argument relating to the prominent Herrik v Grindr case wherein she argued a product liability theory as a work around Section 230. That case ended when writ was denied by the U.S. Supreme Court in October of 2019. I’ve heard Ms. Goldberg speak on this case a few times and one thing she continually harps on is the fact that the Grindr didn’t have way to keep Mr. Herrik’s ex from using their website. She seems surprised by this. As someone who represents platforms, it makes perfect sense to me. We must not forget that people can create multiple user profiles, from multiple devices, from multiple IP addresses, around the world. Sorry, Plaintiff attorneys…the platforms’ crystal ball is in the shop on these issues … at least for now. Don’t misunderstand me. I believe Ms. Goldberg is fighting the good fight, and her struggle on behalf of her clients is real! I admire her work and no doubt she sees it with a lens from the trenches she is in. That said, we can’t lose sight of reality of how things actually work versus how we’d like them to work.

PANEL #2:

There was a clear plea from Ms. Franks and Ms. Souras for something to be done about sexual images, including those exploiting children.  I am 100% in agreement that while 46 states have enacted anti “revenge porn” or better termed Non-Consensual Pornography laws, such laws aren’t strong enough because of the malicious intent requirement.  All a perpetrator has to say is “I didn’t mean to harm victim, I did it for entertainment” or another seemingly benign purpose and poof – case closed.”  That struggle is difficult! 

No reasonable person thinks these kinds of things are okay yet there seemed to be an argument that platforms don’t do enough to police and report such content.  The question becomes why is that?  Lack of funding and resources would be my guess…either on the side of the platform OR, quite frankly, on a under-funded/under-resourced government or agency to actually appropriately handle what is reported.  What would be the sense of reporting unless you knew for sure that content was actionable for one, and that the agency it is being reported to would actually do anything about it?

Interestingly, Ms. Souras made the comment that after FOSTA no other sites (like Backpage.com) rose up.  Curiously, that directly contradicted Ms. Adams’s statement about the Amsterdam website popping up after Backpage.com was shut down.  So which is it?  Pro-FOSTA statements also directly contradicts what I’ve heard last October at a workshop put on by ASU’s Project Humanities entitled “Ethics and Intersectionality of the Sext Trade” which covered the complexities of sex trafficking and sex work.  Problems with FOSTA was raised during that workshop.  Quite frankly, I see all flowery statements about FOSTA as nothing more than trying to put lipstick on a pig; trying to make a well-intentioned, emotionally driven, law look like it is working when it isn’t.

Outside of the comments by Ms. Franks and Ms. Souras, AG Doug Peterson out of Nebraska did admit that the industry may self-regulate and sometimes that happens quickly, but he still complained that the state criminal law preemption makes his job more difficult and advocated for an amendment to include state and territory criminal law to the list of exemptions.  While that may sound moderate, the two can be different and arguably such amendment would be overbroad when you are only talking about sexual images.  Further, the inclusion of Mr. Peterson almost seemed as a plug in for a subtle push about how the government allegedly can’t do their job without modification to Section 230 – and I think a part of the was leaning towards, while not making a big mention about it, was the end-to-end encryption debate.  In rebuttal to this notion, Matt Schruers suggested that Section 230 doesn’t need to be amended but that the government needs more resources so they can do a better job with the existing laws, and encouraged tech to work to do better as they can – suggesting efforts from both sides would be helpful

One last important point made during this panel was Kate Klonik making the distinction between the big companies and other sites that are hosting non-consensual pornography.  It is important to keep in mind that different platforms have different economic incentives and that platforms are driven by economics.  I agree with Ms. Klonik that we are in a massive “norm setting” period where we are trying to figure out what to do with things and that we can’t look to tech to fix bad humans (although it can help).  Sometimes to have good things, we have to accept a little bad as the trade-off.

PANEL #3

This last panel was mostly a re-cap of the benefits of Section 230; the struggles that we fact when trying to regulate with a one-size fits all mentality and, I think most of the panelists seem to be agreeing that there needs to be some research done before we go making changes because we don’t want unintended consequences.  That is something I’ve been saying for a while and reiterated during the ABA’s Forum on Communications Law Digital Communications Committee hosted a free CLE titled “Summer School: Content Moderation 101” wherein Jeff Kosseff and I, in a moderated panel by Elisa D’Amico, Partner at K&L Gates, discussed Section 230 and a platform’s struggle with content moderation.  Out of this whole panel, the one speaker that had most people grumbling in the audience was David Chavern who is the President of News Media Alliance.  When speaking about solutions, Mr. Chavern likened Internet platforms to that of traditional media as if he was comparing two oranges and opined that platforms should be liable just like newspapers.  Perhaps he doesn’t understand the difference between first party content and third-party content.  The distinction between the two is huge and therefore I found his commentary to be the least relevant and helpful to the discussion. 

SUMMARY:

In summary, there seem to be a few emotion evoking ills in society (non-consensual pornography, exploitation of children, sex trafficking, physical attacks on victims, fraud, and the drug/opioid crisis) that the government is trying to find methods to solve.  That said, I don’t think amending Section 230 is the way to address that unless and until there is reliable and unbiased data that would suggest that the cure won’t be worse than the disease. Are the ills being discussed really prevalent, or do we just think they are because they are being pushed out through information channels on a 24-hour news/information cycle?

Indeed, reasonable minds would agree that we, as a society, should try and stop harms where we can, but we also have to stop regulating based upon emotions.  We saw that with FOSTA and arguably, it has made things more difficult on law enforcement, victims alike and has had unintended consequences, including chilling speech, on others.  You simply cannot regulate the hate out of the hearts and minds of humans and you cannot expect technology to solve such a problem either.  Nevertheless, that seems to be the position of many of the critics of Section 230.

For more reading and additional perspectives on the DOJ Section 230 Workshop, check out these additional links:

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

Don’t Let Scammers During COVID-19 Fool You!

If COVID-19 wasn’t stressful enough, now you have to watch out for scammers trying to take advantage of you. Below are a few tips:

  • Watch out for any links that get texted to your phone that promise to track coronavirus (through an app or otherwise). This might be malware designed to spy on you or get other information such as logins and passwords.
  • Watch our for links in random emails talking about the coronavirus. Phishing attempts are running rampant right now. If you aren’t sure about a link in an email you get, don’t click on it. If you aren’t sure about an email that’s in your inbox, simply call the company to ensure it’s a legitimate email and safe to open. Better to make a phone call than be sorry.
  • Understand that there is a flood of disinformation/misinformation about the virus, including remedies, cures, etc. This is especially true among the naturopath/DIY groups. If it is not coming from a reputable source (local hospital, your doctor’s office, the CDC, WHO, etc.) please don’t share it. If you do share information, cite the source that you obtained the information from so others can determine reliability of the information. Remember, anyone can buy a domain and anyone can make a meme.
  • If you receive a call from someone claiming to be from a charity, asking for personal information of financial information, hang up. If you want to give to a charity, go directly to their website. Also, only go to known charities. Just because a website looks like a “charity” doesn’t mean it is. Again, anyone can buy a domain and make a website.
  • If random strangers are showing up at your house, suggesting they are there to do coronavirus testing, etc., do not let them in your house! Ask for credentials/information and then call the organization that they say they are with to confirm they are who they say they are. Remember, anyone can lift a picture or information off of a website and make a fake badge, etc.

Some related reading:

https://arstechnica.com/information-technology/2020/03/the-internet-is-drowning-in-covid-19-related-malware-and-phishing-scams/

https://www.forbes.com/sites/thomasbrewster/2020/03/18/coronavirus-scam-alert-covid-19-map-malware-can-spy-on-you-through-your-android-microphone-and-camera/

https://www.usatoday.com/story/opinion/2020/03/17/fda-chief-stop-using-unapproved-products-claiming-prevent-coronavirus-column/5041971002/

https://www.military.com/daily-news/2020/03/16/army-white-house-issue-warnings-about-coronavirus-hoaxes-and-scams.html

Lexington PD advises of COVID-19 related phone scam

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

From the #MoronFiles | Be Specific When Asking for Help

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just some of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

01/15/2020 – #MORONFILES ENTRY

So I’m not sure of this is full blown “#MoronFiles” worthy story but it’s been a while since I’ve shared my frustrations about others in my profession. This is relatively short, but the exchange that I had to review is this:

  • Lawyer writes to one of my business clients asking how to get someone from one of their departments to help them. Nothing more…just a basic one liner asking how to get help.
  • Business department writes back asking for more information – for the lawyer to be more specific as to what they need help with.
  • Lawyer writes back again with another single sentence but barely providing enough information for business department to even know what the lawyer is even referring to.
  • Business department writes back and provides generic information – because they have nothing specific to go off of.
  • Lawyer writes back AGAIN with short fragmented sentences saying that they want to take some action with regard to “this” but never explains what “this” is.

I looked this person up. This is a real, licensed lawyer. With the level of vagueness and lack of effort actually put into explaining anything I actually thought it was another person pretending to be a lawyer…but nope…someone who apparently passed a bar and obtained a license to practice.

Attorneys: if you can’t take the time to be specific about your situation when asking a question, or asking for help (so that a business can appropriately evaluate your question) you absolutely DO NOT deserve to be helped. Don’t be rude and waste people’s time and resources because you’re too lazy to type out a proper explanation/inquiry. Emails are NOT for “chit chat.” A business isn’t going to waste it’s time pulling information from you. You can, and should, do better.

Until next time friends…

Legal fees: 7 ways that YOU may be contributing to a higher legal bill

No one loves legal fees and with the advent of the internet, and all of these “free” forms and information online that people now have access to, many lay people seem to think that paying for a lawyer’s time is overrated or that you could have obtained the same information elsewhere for a fraction of the cost. If you are starting with that mindset, you are setting yourself up to be frustrated with your lawyer and with the inevitable bill. If that is you, save yourself and your potential lawyer some aggravation…don’t engage an attorney. Take your chances with whatever you can find online, which may or may not be right for you and your situation, and run with it. No, really. It’s not with the frustration for either of you. No business, lawyers/law firms included, want to deal with a disgruntled client/customer that is going to nickel and dime them because they think they could have gotten a better deal elsewhere. There may always be someone “better qualified” or “cheaper” although the two don’t usually coincide with one another. The question then becomes, can you have a good working relationship with your lawyer? That’s what you really want.

If you do decide to move forward with an attorney, understand that there are things that YOU might do that can make your lawyer bill even more expensive:

1) Thinking that your situation is “simple” and being stuck in that mindset even when you are told that your situation isn’t “simple.” The matter may be simple to you, but that’s because you aren’t going to think of all the same things your lawyer is. Most matters are far more complex than what a client thinks it is. The more complex a matter is or the more complex the lawyer says it is, the higher the bill will likely be. Expect it.

2) Taking a free legal template document (which is SO basic it that it likely doesn’t actually cover what you need to accomplish your goals) and asking a lawyer to review it. Chances are, no lawyer is going to look at that and think that it is a legal masterpiece; but you are going to pay them to look at it anyway, and it’s likely going in the garbage. If that is where you are starting, you are better off asking the lawyer to draft and agreement or other legal document from scratch. At least then you aren’t paying for their time to read something that they likely won’t use in the first place.

3) Not being forthcoming with information to begin with. You have to remember that your attorney doesn’t know the matter or the parties like you do. It is up to you to help get your attorney up to speed on all the specifics and timely provide them with the information they request. You also have to remember that if your attorney’s job is to help protect you from some other party or risk, they are going to assume, and try to prepare for, the very worst. If you have a good lawyer, they are likely going to dig and ask questions to help them do that. Some questions you may not be comfortable answering but it is best to answer them anyway because if you don’t, and your attorney is suspicious of the situation, they will dig for themselves and you will be expected to pay for their digging.

4) Providing hasty inadequate answers to, or otherwise failing to actually address, your lawyer’s questions. If a lawyer doesn’t feel they are getting the whole story, a good one will dig for more information to find the answers to their questions and it will likely be done at your expense. It’s better to be forthcoming and provide as much information as is requested or possible (it’s better to over disclose than under disclose) and provide such information in a methodical and organized manner as you can. Don’t just dump a bunch of papers in a box and say “Here ya go!” Your lawyer will charge you the time it takes to organize all of the materials.

5) Providing incorrect answers to your lawyer’s questions. A good lawyer will trust the information they are given but will also verify the information provided. If your attorney finds even one answer wrong/inconsistent from prior statements given to them, they are not going to trust what you (or whoever) are telling them and will have to verify all of the information given to them. You should always back up your statements with the documents supporting your statements. The more time your lawyer has to spend verifying the accuracy of the information that has been provided, the bigger the bill.

6) Not heeding warnings and advice of your lawyer. A lawyer can never protect you from all risk, but they can tell you when there are major red flags and discuss ways to avoid it. Asking your lawyer to move forward, especially when you want to be cutting corners on recommended due diligence, increases the risk of the transaction or situation and also makes the attorneys job 10 times harder than it needs to be. This is because without the proper information they have to try to plan for, and anticipate, all of the unknowns. The longer and harder your lawyer has to think, especially where there are unknowns, the higher the bill is likely to be.

7) Being “needy.” Attorneys aren’t often called “counselors” for nothing. Many situations can be very emotional and often people want to rely on their attorney for emotional support, a safe ear, and a constant source of reassurance. It happens to the best of us! At the same time, if you are the type of person that desires a lot of interaction and attention from your attorney, you should plan on and be prepared for, a higher bill. Why? Well, you have to think that even though you are a valuable client, chances are, your lawyer has other clients and projects. If they are in the middle of a project, and you call or keep sending text messages or emails, that interrupts their train of thought and their attention is diverted to you. Your attorney has to reorient their brain to address your call, text or email and then, when they are done with your matter, they have to again reorient their brain back to whatever it was they were working on and try to figure out where they were. It can be much like working from home when you have a few small, and unattended, children. The time that they give you to vent, be it on the phone, text or via multiple emails, and the time it takes them to reorient themselves back to their prior project, may very well end up on your bill and you should expect it. Just assume a .1, at least, to be on your bill, for every communication you initiate. Your attorney may be kind and write off some time, but you shouldn’t expect it.  Think about it…would you go to work and then tell your boss to deduct money from your pay check even though you spent time on work projects for your boss?

Lawyers can be expensive but you can lessen the financial burden by giving a little more consideration to how you interact with your lawyer. The more work or hand-holding they have to do, the bigger your bill will likely be, regardless of how “simple” you think a task. Help them, help you.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

“Internet Law” explained

For some reason, every time one says “lawyer” people tend to think of criminal law, family law or personal injury law.  Perhaps because those are very common.  Most people even understand the concept of a corporate or business lawyer, someone who handles trust and estates, or even one that handles intellectual property.  However, when we say “Internet Law” many people get the most confused look on their face and say: “What the heck is that?” If that is you, you’re in good company.  And, to be fair, the Internet really hasn’t been around all that long.

If you were to read the “IT law” page on Wikipedia you’d see a section related to “Internet Law” but even that page falls a little short on a solid explanation – mostly because the law that surrounds the Internet is incredibly vast and is always evolving.

When we refer to “Internet Law” we are really talking about how varying legal principles and surrounding legislation influence and govern the internet, and it’s use.  For example, “Internet Law” can incorporate many different areas of law such as privacy law, contract law and intellectual property law…all which were developed before the internet was even a thing.  You also have to think how the Internet is global and how laws and application of those laws can vary by jurisdiction.

Internet Law can include the following:

  • Laws relating to website design
  • Laws relating to online speech and censorship of the same
  • Laws relating to how trademarks are used online
  • Laws relating to what rights a copyright holder may have when their images or other content is placed and used online
  • Laws relating to Internet Service Providers and what liabilities they may have based upon data they process or store or what their users do on their platforms
  • Laws relating to resolving conflicts over domain names
  • Laws relating to advertisements on websites, through apps, and through email
  • Laws relating to how goods and services are sold online

As you can see just from the few examples listed above, a lot goes into “Internet Law” and many Internet Law attorneys will pick only a few of these areas to focus on because it can be a challenge just to keep up.  Indeed, unlike other areas of law, “Internet Law” is not static and is always evolving.

Do you think you have an Internet Law related question? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients and strive to meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

 

From the #MoronFiles | Note to Dabblers: When in doubt, refer it out!

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

09/10/2018 #MORONFILES ENTRY:

If you are a lawyer and your website boasts that you are the top “insert any law practice not having to do with civil internet defamation matters here” and that is ALL that it is listed that you practice on your website…perhaps you should stick with what you know.  More often than not, dabbling makes you look like an unprofessional asshole to those who do practice in the area you are dabbling in and you are really doing a disservice to your client.  Don’t get me wrong, I’m all for learning new areas of law…  I wouldn’t be doing what I am doing but for me learning new stuff…but I could do reasearch on my own and I also found mentors.  And if you don’t have a mentor, you should be damn smart enough to conduct basic research first before you go sending your little nasty grahams.  Have a leg to stand on for crying out loud!  Be smart enough to know what you don’t know.  When in doubt, refer it out!

So client gets a letter from a law firm, from a foreign jurisdiction (but not THAT foreign – like this country likes to cite to our case-law on occasion) that basically provides the run of the mill demand letter and threat of litigation if the client doesn’t comply.  Sounds rather standard; so what’s the problem?  This particular lawyer has not a f*cking clue what he/she is talking about.  This is evident by the fact that they cited to a local statute that would ONLY make sense if it was filed some 2+ years ago…and if they applied to someone OTHER than this particular client. *Sigh*

I don’t care what area of law you practice in – claims have some sort of statute of limitations.  If your law school education didn’t teach you that – go get your damn money back!  It’s basic legal analysis 101.  If you are going to make a demand, you should probably look that up first to see if your threat of litigation is going to make you look like a tool or not by being outside of the statute of limitations for the claim you are asserting. Now, I know that some attorneys argue that it is okay to bring a claim that is outside of the SOL and wait to see if the Defendant raises that defense.  I do not subscribe to that kind of lawyering and some State Bar opinions are with me on this.  Second, you should see if such liability actually even extends to the person/entity that you are threatening…and if your own jurisdiction didn’t just create some law that is totally opposite of the position that you are trying to pursue.  Yeah, because I can do research too…and that happened here. *Asshat*

This is a prime example of a person/firm that I won’t forget…and it is a person/firm that I would NEVER refer anyone to…because they have already proven they don’t do necessary research to adequately advise a client.  That is true of anyone who makes my #MoronFiles list (the list is getting longer by the day – though I don’t write about them all).  This is why I think it’s important that clients and lawyers understand statute of limitations and other pertinent aspects that should be contemplated before sending such threats.  It’s not just your client that is watching you (and that you could be harming by wasting their resources)…so are others in the profession.  I remember who are above-board and who aren’t…and I’m happy to refer to colleagues in the space, even if they are opposite of a client of mine, if they show professionalism.  To be clear, this isn’t the first of it’s kind…just felt like venting regarding this one today.

Until next time friends!

 

From the #MoronFiles | Can’t Read or Lazy as F*ck?

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shit bags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

07/09/2018 #MORONFILES ENTRY:

Today, maybe I’m a bit fired up.  It’s hot as hell here in sunny Phoenix, Arizona and maybe that’s starting to aggitate me a little more than ususal.  Nevertheless, I have another #MoronFiles entry for you today.

I see a lot of demand letters on behalf of my clients; a product of respresenting different websites. The standard process is: I get a wholly ridiculous demand letter, often written by some pro-per guy (which I totally give leeway to) or attorney that doesn’t practice in the internet space, let alone the niche that revolves around Section 230 of the Communications Decency Act (a “dabbler” if you will); I respond with a TRUCK LOAD of on point law – from federal statues to federal and state case law around the country (often including law in said dabbler’s jurisdiction too) explaining why their demand is without merit (aka, total garbage).  Most of the time that works because smart people or counsel will take time to read the law and come back days later trying to work out an agreement or will otherwise find an alternative path that doesn’t involve my client.  I don’t charge them for providing this free legal education that, in my opinion, (especially if they are an attorney) they should have researched before they sent said dumpster fire of a meritless demand letter.  No big deal – I like educating people.  When the tide rises – so do all the boats, right?

This was not the experience today.  Instead, I get dumpster fire demand letter from a dabbler (I looked counsel up – NOT internet law at all – as in, as far from that as one can get) and from one of my “problem child” states (yes, certain counsel from certain states tend to suck at life more than others); I send the lengthy, but relatively PC “your demand is garbage” with all the case law; and…30 minutes later…I got a response back that said something along the lines of “I disagree with your legal analysis.”  Um, first of all, there is no way in hell you read all that case law in 30 minutes; and second, if you did read it (not possible) a response of “I disagree with your legal analysis” suggests to me that you have a reading comprehension issue. So, you can’t read or you are lazy as f*ck?  Which is it?  My guess? Lazy. As. F*ck.

The additional posturing in the response back suggests to me that this is yet another dabbler who doesn’t give two shits about his/her client and is willing to file meritless legal action, to line his/her pocket with money, with no probable benefit to the client.  Assuming that the court acts in the same manner as all the other cases in this jurisdiction that my clients and others similarly situated have dealt with, and elsewhere around the country, the action will be dismissed right away with ZERO benefit to the client.

I fricken HATE attorneys like that…and this is why this person made the #MoronFiles.  Remember, not all attorneys are created equal.  Some of us actually give a crap and will do the appropriate reasearch ahead of time instead of making you look bad or making your situation worse.

Data Privacy: Do most people even deserve it?

Repeat after me: Everything connected online is hackable.  Nothing online is really ever totally private. Most everything about my online activity is likely being aggregated and sold.  This is especially true if the website is free for me to use. 

Okay, before we get going, realize that this article is not discussing things that we would like to think is relatively safe and secure…like banking and health records.  Even then, please repeat the statements above because even for those situations it still holds true.  What I’m going to talk about is the more run of the mill websites and platforms that everyone uses.

The truth of the matter is, most people never read a website’s terms of service or privacy policy and readily click the “I agree” or “I accept” button without knowing if they have just agreed to give away their first born or shave their cat.  Or, to be more realistic, that a free to use website which you don’t have to spend a penny to use is likely to track your behavior so they can render you ads of products and services that you might be interested in and/or sell aggregated data and/or your email address to marketers or other businesses that might be interested in you as a customer or to learn more about consumer habits in general.  Hello people…NOTHING IS FREE!  Indeed, most humans are lazy as sh*t when it comes to all of that reading and so forth because really, who in the hell wants to read all that?  Hey, I’m guilty of it myself,  although since I write terms of service and privacy policies as a way to make a living sometimes I will read them for pure entertainment.  Don’t judge me…I’m a nerd like that.

We are quick to use, click or sign up on a website without knowing what it is that we are actually agreeing to or signing up for…because we want entertainment and/or convenience…and we want it NOW.  Talk about an instant gratification society right? Think about the following situations as an example: Go to the grocery store and buy ingredients then take another 35-40 minutes to make dinner or simply use an app to order pizza? Send someone a handwritten letter through the mail (snail mail) or shoot them an email? Sit down and write checks or schedule everything through bill-pay? Pick up a landline phone (they do still exist) and call someone or send them a text from your mobile device?  Go to the local box office and purchase tickets to your favorite concert or buy them online? Stand in line at the theater for tickets or pre-pay on an app ahead of time and walk right in using a scan code through that app? Remember and type in your password all the time or ask your computer or use your thumb print to remember it all?  Take pictures with a camera that has film, get it developed and send those images to family and friends or take pictures with your phone and instantly upload them to a social media platform like Facebook to share with those same people, for free? By now you should be getting my point…and that is that we want convenience, and technology has been great at providing that, but for that convenience we often forget the price that is associated with it, including a loss of data privacy and security.

Low and behold, and not surprisingly (to me anyway), something like the Facebook – Cambridge Analytica situation happens and Every. Damn. Person. Loses. Their. Mind!  Why? Well, because mainstream media makes it into a bigger story than it is…and suddenly everyone is “conveniently” all concerned about their “data privacy.”  So let me get this straight: You sign up for a FREE TO USE platform, literally spend most of your free time on said platform pretty much posting everything about yourself including who your relatives are, what you like and don’t like, the last meal you ate, your dirty laundry with a significant other, spend time trolling and getting into disputes on bullsh*t political post (that are often public posts where anyone can see them), check in at every place you possibly go, upload pictures of yourself and your family…all of this willingly (no one is holding a gun to your head) and you are surprised that they sell or otherwise use that data?  How do you think they are able to offer you all these cool options and services exactly? How do you think they are able to keep their platform up and running and FREE for you to use?  At what point does one have to accept responsibility for the repercussions from using a website, signing up or clicking that “I agree” button?  Damn near ever website has a terms of service and privacy policy (if they don’t steer clear of them or send them my way for some help) and you SHOULD be reading it and understand it…or at least don’t b*tch when you end up getting advertisements as per the terms of service and privacy policy (that you didn’t bother to read)…or any other possible option that could be out there where someone might use your information for – including the possibility that it will be used for nefarious purposes.

I’m not saying that general websites/platforms that house such content shouldn’t have reasonable security measures in place and that terms of service and privacy policies shouldn’t be clear (though its getting harder and harder to write for the least common denominator).  But again, nothing is 100% secure – there will always be someone that will find away to hack a system if they really want to and it’s really your fault if you fail to read and understand a website or platforms terms of service and privacy policy before you use it or sign up for something.  Why should people scream and cry for the “head” of a platform or website when people freely give their data away?  That’s like blaming the car dealership for theft when you take your fancy new car to a ghetto ass neighborhood, known for high crime and car theft, leave it parked on a dark street, unlocked and with the keys in it.  “But they should have watned me it would get stolen!” Wait! What?Okay, maybe that’s a little too far of an exaggeration but seriously, the internet is a blessing and a curse.  If you don’t know of the potential dangers, and you don’t take the time to learn them, perhaps you shouldn’t be on it?  Remember, entertainment and convenience is the reward for our sacrifice of data privacy and security.

You know who has a heightened level of privacy, doesn’t have social media accounts hacked, data isn’t mined from online habits and doesn’t get spammed to death?  My dad.  Why? He doesn’t get on computers let alone get online and he doesn’t even own a smart phone.  True story.  The dude still has checks, writes hand written notes, and hunts for his meat and gardens for his vegetables. Can you say “off the grid”?  Want heightened data privacy?  Be like dad.

Repeat after me: Everything connected online is hackable.  Nothing online is really ever totally private. Most everything about my online activity is likely being aggregated and sold and sold.  This is especially true if the website is free for me to use.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction. 

 

 

From the #MoronFiles | I’m not a lawyer…I just play one online.

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shit bags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

04/10/2018 #MORONFILES ENTRY:

It’s been a while, and there have been some probably post worthy matters that I have skipped, but THIS one warrants mention.

Normally this blog touches on people who are indeed real lawyers…and I started this thinking I was dealing with a real lawyer, after all, I see enough dumb stuff that I created this blog series off of it…but as I dug in, this almost makes more sense! Let me explain…

One of my clients received a demand letter today (a send via email in a generic word doc, no formal letterhead, nothing).  The letter alleges to be from a lawyer, with a firm name in a signature block, but sent from a Gmail account.  Let me first say, anytime I receive a letter from a lawyer, representing a client, from a Gmail account, I cringe. Dude, a domain is cheap and so is associated email.  You automatically lose credibility in my book but that’s another story for a different day.  I read through the letter (blah, blah, blah…”[s]evere legal action will be taken against you”…blah, blah, blah…”we assure you in the strongest terms” blah blah blah, we will “leave no stone unturned”…blah, blah, blah).  Okay, severe legal action? As opposed to regular legal action? Strongest terms? Leaving no stone unturned? Wait, are you Perry Mason?  No? You have Perry Mason envy don’t you?  Sigh. Who comes up with this crap? Oh, this person…

To begin with, let’s just say this is another case of some moron having no damn clue what they are talking about…all the blah blah blah is really just a bunch of lame bullshit they probably read somewhere online and thought it might apply to their “client’s” situation when it doesn’t.  Not even a little bit.  That Google law degree isn’t working so well for ya pal.  What’s even more funny…the person appears to be a total fraud!

So wondering what kind of ding dong would write this kind of stuff I start researching.  The state this person purports to be an attorney in has, like many states, a mandatory state bar registry.  Guess what?  Not listed in the registry.  Look up the LLC that is the alleged firm name on the Corporation Commission records…yeah, entity doesn’t exist.  Look up the address – it might be an apartment (which to be clear, thanks to technology, there are a ton of home based attorneys and there is nothing wrong with that at all – it’s a great way to go!) but in this case it added to the suspicion. Icing on this shit cake – looked into the name provided – court records for recent arrests for a person with that very unique name.  Could there be others named the same living in the same area? Possibly…but given everything else, I sort of doubt it.  Either this is a really shoddy attorney or a person who really sucks at pretending to be an attorney.

There are enough bad lawyers out there…what’s worse is bad people, who are not lawyers but pretending to be lawyers, holding themselves out as such.  By the way such conduct is called the unauthorized (or unlicensed) practice of law and is typically considered a crime.  So indeed, this one makes the #MORONFILES!

UPDATE: This person got turned into the State Bar for Unauthorized Practice of Law and had to sign a document affirming they would stop their ways.  Nope…not a lawyer…and got busted for pretending to be one.  Yeah, that stopped that bullshit in a hurry.

 

Domesticating a Foreign Subpoena in Arizona

So you have initiated legal action in your local state court but an entity or person that you need information from is based out of or otherwise located in the state of Arizona.  What do you do?  Well, if you want someone to tell you how to do it (yep, step by step instructions) or otherwise don’t really want to mess with it much at all, you can seek help from Beebe Law, PLLC.  Simply start by filling out the Arizona State Subpoena Domestication Intake Form.  If you just want to learn a little more…keep reading.

Every state has their own unique set of laws and procedures when it comes to domesticating a foreign subpoena and Arizona is no exception.  The following are a few important points:

  1. Make sure you know who the entity’s statutory agent is and where they are located.  You should be able to find this by searching the Arizona Corporation Commission’s website.
  2. Ensure that you are complying with Arizona’s Interstate Depositions and Discovery rules.
  3. If you are asking for medical records or anonymous author information, there are special rules/laws surrounding that you will need to research.
  4. If you are commanding attendance at a deposition or hearing be sure you are doing it at a location consistent with the rules.
  5. Don’t forget your witness fees!
  6. You will have to arrange to have the subpoena served, e.g. through a process server.

Many can absolutely accomplish the goal of foreign subpoena domestication in Arizona entirely on their own (as long as you pay close attention to the rules) however, if you are unsure of the process, or otherwise just don’t want the hassle of it, feel free to reach out to us.  We are here to help you navigate and/or take over the nuances and have created an entire Foreign State Subpoena Domestication Intake Form to get you started.

If you are in need of assistance with laws and procedure in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

10 Online Safety Hacks You Can Implement Today

Every day you read about major companies, or even law firms, getting hacked.  Talk about some frustrating stuff! It’s even worse when it actually happens to you.  Of course, with the increase of technological convenience comes greater cyber security risk.  One of my personal favorite cyber security gurus and “Shark Tank” star Robert Herjavec recently provided insight for an article that outlined 10 safety hacks that are easy to implement if you aren’t already doing them.  What are those 10 safety hacks?  Continue reading…

Some of these seem pretty intuitive.  Others perhaps not so much but are a good idea.

  1. Enable multi-factor authentication (MFA) for all of your accounts.
  2. Cover internal laptop cameras.
  3. Don’t do any shopping or banking on public Wi-Fi networks.
  4. Ensure that websites are SSL secure (https instead of http) before making financial transactions online.
  5. Delete old, unused software applications and apps from your devices.
  6. Update your anti-virus software as soon as updates become available.
  7. Refresh your passwords every 30 days for all accounts and use unique passwords for each account.
  8. Update computer/mobile software regularly.
  9. Don’t click on unknown links or open unknown attachments.
  10. Change the manufacturer’s default passwords on all of your software.

One of my favorites is the “cover internal laptop cameras.”  I personally used to get made fun of because I would place a sticky note over the top of my camera on my computer.  I suppose it didn’t help that it was bright green (or hot pink) depending on what color sticky note I had handy so it drew attention until I was given a better one (a plastic slider made specifically for this purpose) at a networking event from Cox Business. Now it doesn’t seem so silly after all.

Another one that I know is important, but probably more difficult to do, is to “refresh your passwords every 30 days for all accounts and use unique passwords for each account.”  Holy moly!  Think of how many accounts have passwords these days?  Literally every different system/app/website that you use requires a password! One LinkedIn user listed as a “Cyber Security Specialist” for a software company offered the solution of a program like LastPass.  Apparently, according to this particular individual anyway, LastPass saves all of your passwords in a securely encrypted container on their servers and have many other built in safety features in the event of stolen or hacked data.  This way all you have to know is one password and LastPass will do the rest.  While surely there are other similar solutions out there, if you are interested, you can read more about LastPass on their How It Works page. Sounds pretty cool, right!?! It might help you break out of that password hell.

A little common sense plus adding in these 10 security hacks can go a long way! Do you have any security hacks to share? Have a favorite password protector that you use? Let us know in the comments!

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

From the #MoronFiles | We will pursue this to the end

PRELUDE: 

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see.  In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shit bags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those.  Others just warrant a short mention because I find the conduct both outrageous AND funny.  I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

08/23/2017 #MORONFILES ENTRY:

Don’t get me wrong, I have spent my fair share of time in the litigation arena, but by now you probably know what I think of F’n Litigators and those that come all “I Demand” at you.  Today we’ve got another winner of the turd trophy award with the “we will pursue this to the end” statement from what appears to be a group of confused counsel.  Why are they confused?  Well, first they haven’t done research because if they had, they would realize that my client wouldn’t be liable for the problems they are experiencing. Nevertheless, they send a letter demanding certain action anyway.  Okay, understandable…they are advocating for their client’s perceived rights and a nice response goes back – trying to be helpful by explaining options, etc.  These people must be not that busy because a response comes back near immediately explaining that they are considering litigation in State A and will name my client.  Um, now I think you haven’t done your research so let me give you case law in State A, and other states around the country, that explains that their argument is without legal merit and a bunch of other “don’t do this because it’s a bad idea” content.  Cool.  That should take care of it, right?  Nope! Counsel writes back, explains they’ve litigated in State B, and will see the case through to the end.  Um, so which is it? You wanna fight in State A or State B?  And did you even read what I wrote you because I cited law in both State A and B that is on point and NOT in your favor.

Where in the hell do people find these attorneys?  And do these people just like to waste their resources on these kinds of lawyers?  Because I feel like I see a lot of these legally meritless, yet ego filled, letters that are about as helpful and pleasant as an itchy bung-hole…and I know the client is the one that has to pay for it.  Not a fan of wasting client resources.  There are so many things they COULD do to help their client BUT, you know, it’s better to set your client up for eating attorneys fees and costs because of ego.  LET. IT. GO.