This Week In Law 243 (Transcript)

Denise Howell: Hi Folks! Next up on This Week in Law, we've got scraping, we've got hacking, smearing and Napster for finance; it must be time for This Week in Law. We've got Lisa Borodkin joining us today, stay tuned, next on TwiL.

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Bandwidth for This Week in Law is provided by CacheFly, at cachefly.com. This is TwiL, This Week in Law with Denise Howell and Evan Brown, recorded January 24, 2014

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Denise: Hi folks, you're joining us for This Week in Law, I'm Denise Howell, here with my co-host Evan Brown, hello Evan.

Evan Brown: Hi Denise, happy Friday to you, good to see you.

Denise: Happy Friday to you! Joining us this week we have Lisa Borodkin who is returning to the show after a year hiatus from joining us, we have to remedy that.

Lisa Borodkin: Hi Denise, Hi Evan!

Denise: It's great to have you back on, what's going on with you these days? Catch us up.

Lisa: It's been an exciting year. I'm consulting to a couple of copyright and toy industry clients, and teaming up in my private practice to start a couple of new cases, should be interesting there, and excited to --- to South by SouthWest interactive in March, and that's pretty much what's going on for the first quarter of this year.

Denise: Are you on a panel again at South by SouthWest?

Lisa: No, I'm not going on a panel this year, although my good friend Christina Ganae is doing a panel that should be a great --- and very related to topics that I frequently speak on, revenge porn, that's a constantly evolving area of loss so I look forward to checking that out, and all the other great speakers.

Denise: I thought we would check in this week at the top of the show since it happened last week, kind of as we were doing the show, President Obama announcing his NSA reforms, so let’s look at this privacy issue first. Of course lots of our stories today have privacy overtones too, so that can be sort of an overarching theme of the show today. We did get word from the Obama administration announcing reforms of the Nation Security Agencies surveillance programs, basically there weren't too many surprises there, more transparency being afforded to companies who want to let people know exactly what they are being asked to provided more freedom and flexibility to disclose that information. There's a really good article by Steven Levy at Wired, going over the ramifications of the reforms for Silicon Valley firms, his overall take having parts the President's remarks is that he's not too sanguine that Silicon valley firms are going to be able to salvage and restore the public trust, in the fact that they are holding a lot of our data. Evan do you agree with Steven Levy that that is going to be a tough thing to shore up?

Evan: The way I read his article here is – and to a great extent he's having to divine what Silicon Valley firms might be thinking about, for example, Google, Apple, might be thinking about in all of this, that there is no cause for celebration yet because of the presidential order here, because it didn't do away with the surveillance program altogether, so that's why it didn't go far enough. Clearly the biggest thing to be optimistic and pleased about from all this is, as you mentioned, Denise, greater increase in transparency. That's going to benefit not only the providers of service, the Silicon Valley firms that provide these massive platforms, but also the users as well, because the biggest thing that just gets us at a real gut level in all this is the fact that our communications – metadata about those communications to be fair and accurate about this, – seems to just go out there in this black box and especially with proceedings in front of the FISA court, this whole notion of the secrecy in which all of this is clouded, leaves us pretty uncomfortable about the sorts of information that's being gathered. What information the government is looking for, how often it's done, so I think that will do quite a bit to mitigate public concern, this greater notion of transparency, more information about what information is gathered in relation to the overall volume of information that the companies have about us, that should do something to set the public at ease. As far as the ultimate conclusion of Steven Levy's article here, it doesn't sound like anything short of having done away with the NSA data collection program would have gotten him to say anything positive, or to come out with a completely positive pronouncement about it here.

Denise: There are some more reforms aside from simply giving companies the ability to talk more than they have been able to in the past. The foreign intelligence surveillance court is going to add members with expertise in civil liberties and technology and is going to be authorized to declassify or maybe ordered to declassify more of its decisions. Also there's going to be a review panel to figure out the government's stance on big data privacy and Steven Levy points out in his article, this could be helpful because US companies are constantly trying to keep up with the different laws that they have to comply with, both in the United States and internationally, particularly in the EU, where privacy rules are much more restrictive, but on the other hand Steven is worried that this panel might take not such a positive view of the practices that companies are engaged in. The President himself and his remarks “The challenges to our privacy do not come from government alone, corporations of all shapes and sizes track what we buy, analyze our data and use it for commercial purposes, that's how those targeted ad’s pop up on your computer or your smart phone”. So it sounds like President Obama is not telling Silicone Valley that they are off the hook either, if the government is getting a whole bunch of flak for looking into people's data, I guess the message here is that you're making it not just easy for the government to do it, but you're making use of that data as well. Lisa, what do you think the response to this is going to be?

Lisa: I think that everyone is sort of uniformly “meh” about it, it was very interesting to shed a light on what we currently have in terms of transparency and the NSA's collection of data. There is also an article on Ars Technica that goes over some points of the report and one thing that I found interesting is that this foreign intelligence surveillance court or whatever, even though it's called a court, it really doesn't have much transparency, it's a court only open to the government and apparently one of Obama's notes there was that he was going to pay to have a “human rights” representative on this court, which to people like us who are used to the adversarial open and public process, it's kind of like “ok, great”. If you’re going to call it a court, why don't you have something that most of us are used to. It's an incredible visintine scheme, it seems to me, these Silicon Valley companies have done quite a bit with our personal data themselves, most of the business models incorporated some way quantifying, advertising to, or collecting our data somehow. It's something to study and watch but I sort of took the point of the article to be that they are all in it together, Government and Silicon Valley, so they might as well keep talking and working together, but the more transparency there is, the better it is ultimately for those of us who use and are monitored by these services.

Denise: Evan, what do you think of Lisa's point that it's sort of fascicle to call the foreign intelligence surveillance court a “court” per se, because it's really more of a star chamber.

Evan: It's definitely not what we're used to as far as being – with our government not operating in communicado like that, historically we're not used to that and I think we have a lot of aversion from that going to back to the colonial days, that's why the judiciary was set up as it was in the constitution to be that way. But one point, going to what the president said that it's not just the government but it's also the silicon valley firms that are partly responsible, it looks like he's doing a great job of trying to have it both ways there, of having these private enterprises being the subject of some finger pointing, saying “hey, they're the ones who are the privacy violators here”, but he's also able – when I say He, I'm talking about the federal government, NSA in general also – able to be the beneficiary of that data collection as well. --- the agreements with Verizon and the various disclosures that have come out, from Ed Snowden, the prison program and all that stuff. Which is it? Should private industry be the subject of finger pointing, or should they be recognized as this real boon to the government and it's surveillance program as well, and that seems like perhaps slightly more than just a rhetorical question here. It underscores the real problem as to the fact that there are these enterprises collecting this vast amount of data, and we don't enjoy the same kind of built in privacy protections when that information is in the hands of private enterprises, what we would if that information was trying to be grabbed on by the government straight from us with the protections of the fourth amendment.

Denise: Alright, having gone through that, let’s move on to some social web stories which all have privacy overtones. “Social web law”. So Lisa, sticking with our theme of catching up with you, you have been involved both as council for a third party, and then as a litigant to yourself with the company “Ripoff Report”. Why don't you get us up to speed on the history, start with your representation of Asia economic Institute, let us know what happened in that case and take us up to present day.

Lisa: Oh sure! It's quite an interesting story. I am an internet and intellectual property lawyer, and I guess it was about 3 or 4 years ago I was contacted by a potential client who had a lawsuit on file, basically bringing claims against the owners of the Rip-Off Report website for their business model, which this plaintiff claimed amounted to attempted extortion. It's a familiar business model to those of us who have been motoring the internet and commercial law over the internet for several years, which is basically it collects 3^rd party reports or content and makes them available on the web and charges a fee to modify or investigate the content of the reports. I litigated that case with another co-council, and like every law student is told, the case had numerous twists and turns, and it was eventually resolved in 2012. Some of the claims were resolved on dismissal, some of them by some re-judgement, some of them were dropped, but the whole case was finally resolved. I think it was May 2011. Throughout the case, the attorney's for Ripoff Report basically said they were going to bring malicious prosecution claims against my clients and myself and my co-council unless, and then a list of conditions were provided which I was not authorized to accept on behalf of my clients, and so after that case was resolved, I was sued personally in Arizona, for malicious prosecution of that case. So that case went on for a while, I eventually had the case dismissed under the federal rule that allows for a dismissal of a case if the court determines that there is just no claim there, and that case has been under appeal. Throughout the course – and that case according to the 9^th circuit frequently asks questions – that case should be ready for oral arguments around September of this year, 9-12 months after it was briefed. The case generated a lot of interest for a variety of reasons, and there's been numerous blog posts on aspects of all the many, many lawsuits that people bring against Ripoff Report. This case I think, opened some insights into the operations of the business and also clarified some aspects of the law, but I think the story should be told and there should be equal coverage given to the fact that the lawyers were sued. As lawyers, we all know we have certain responsibilities. It will be interesting to see how this plays out, I just didn't feel that the threat of personal liability should prevent a litigant from having their day in court. Unfortunately we see a lot of chilling effects, because a lot of lawyer's for a lot of reasons – very understandably – they just don't want to be caught up in litigation themselves so a lot of cases don't get brought and a lot of stories don't get reported.

Denise: Ripoff Report tries on its front page to have a very chilling effect on anyone who might try and sue it, right among the most prominent links on the site is a heading that says “Thinking of suing Ripoff Report? If you're considering filing a lawsuit against Rip Off Report, click here for important information about applicable federal law. Do you REALLY want to sue Ripoff Report? You REALLY need to read this link!” So tell us a little bit, Lisa, about how Ripoff Report is a different flavor of entity than something like Yelp, and also what federal laws they are siting to support their business mode.

Lisa: I don't want to get too close to the merits of the appeal, so I'll just give the caveat that I'm trying to restrict my remarks to things that have been actually asserted in the public record in the cases, and I'm really going to try and stay away from any kind of speculation or any sort of editorializing. How is it different from Yelp. It depends on how you look at the business model and that's a very fact-specific question. I would say that it might be different in terms of degrees, but actually the claims against Ripoff Report that were brought in this California case, Asia Economic Institute VS Xcentric, were similar to the current claims against Yelp in Leavitt VS Yelp. If you're familiar with that case, that's essentially, last I checked, trying to plead claims for unfair business practices, unfair advertising, violations of California’s unfair competition law, and the commonality there is an allegation that the businesses don't adequately disclose to consumers or to the public reading the content on their website, their own financial interest in how the operate the site. In the Arizona case against me, the Judge found that our allegations in the Asia Economic case were very similar to the allegations in the Leavitt VS Yelp case, that Judge Patel had found, could sustain an unfair competition law claim. Based on that, found essentially that because it was a viable sort of a claim, it had probable clause, the fact that we litigated that claim meant that a malicious prosecution claim could not be asserted against the attorney's. One unusual aspect however, of the Ripoff report business that does distinguish it from Yelp, this was the last time I checked, which was a couple of years ago, Ripoff Report proprietors to take a worldwide perpetual copyright in any reports that are submitted to it. So the moment somebody decides they are going to write a Ripoff Report and publish it on their website, according to their terms of service, Ripoff Report then becomes the copyright owner of that content. I've never seen that on any other consumer review site or social networking site, usually it's in a perpetual worldwide non-exclusive copyright that the user agrees to. And that issue was alleged in our case, but it really has never been fully litigated. It would be an interesting question on whether that has any effect on exclusion of liability under section 230 of the communications decency act, because if you're transferring content to someone who started off as a publisher and then becomes the owner, would that alter the fact that the website is no longer just an interactive service provider, but actually becomes participant in the distribution or creation of the content, so that's an interesting question. I think that's sort of in a nut-shell the most pertinent similarity to a website like Yelp, and then also one of the most – to me – interesting distinctions.

Denise: There's a whole lot to unpack there, I agree. That whole aspect of not just of getting a license from the users, but actually purporting through their terms of service to make a transfer of copyright come about, could shade the whole communications decency act annalist. I'm now reading through this whole, long, dissertation of “why you don't want to sue us” on the Ripoff Report site, and it's very “communications decency act-centric” as one might expect, and makes some pretty definitive statements in response to one hypothetical question “If you post something false about us, don't you have to take it down?” They say “No, the CDA says we don't have to.” So if they actually purport to be the owners of the content on the site, Evan, don't you think that could change the analysis?

Evan: If they purport to be the owners of the copyright, that would change the section 230 annalist, is that what you're getting at?

Denise: Right, you're no longer, you're publishing, you're not just making it a pass-through anymore, you're no longer just a third party.

Evan: I hear what you're saying, and Lisa, I hear what you're saying with that, but it seems like section 230 immunity is so robust, and sites can do so much with the content editorially, I think the case law generally says they can perform the traditional editorial functions and still be within the sections 230 immunity. I'm not so sure that ownership... I guess I would really need to think about it, I guess it's a matter of first impression in my mind, when you brought it up there, Lisa, whether copyright ownership would somehow make the website owner more of a creator of the content and therefore outside the protections of section 230. My initial impulse is to think that that really doesn't do – that's really just change in status. There's really no movement, no activity that happens when that is, it's just sort of a metaphysical or ontological change in status in who owns the copyright here, so I guess I'm skeptical about all of that.

Denise: I think it would be interesting to have it litigated because that change in status is pretty important for purposes of section 230, being a 3^rd party is pretty critical to the protections of that statute. If you're no longer a third party, if you are the rights holder, I think it could make a difference. But we're just sort of spit-balling this.

Evan: What I really want to talk about is kind of add to what Lisa was saying, since Denise, you and I not being involved in litigation with Ripoff report are at greater liberty to just talk about what a circus it really is, you can hear about how Lisa is being measured, rightfully so, wisely so, in her remarks about it, but Ripoff report is quite a circus compared to Yelp. Yelp truly is, I believe, despite the shenanigans that go on the site because of its users, does intend to be a legitimate service that actually does provide information reviews that are helpful to consumers. Whereas Ripoff report for years and years and years, you can just tell it's trying to stir up trouble, and trying to be a destination on the web that is a lightning rod, to provide this platform for controversial content. And the very fact that they would put that so front and center - “Do you really want to sue us”, just shows the whole attitude here, and I would submit that the reasonably informed internet user doing a search on a business, seeing something on Ripoff report knows, or at least has a strong inclination that that content originated from somebody who had an ax to grind with that company that they have chosen to report. It's called Ripoff report, after all; It's not called Yelp...

Denise: Or bad customer service report or...

Evan: There's certainly not anything positive about the company, and it's not even anything neutral, so it doesn't invite positive commentary, and I suppose if one were to do empirical studies on this, most of the content on Ripoff report, just like it would be with “Pissed consumer” or any of the other “in that ilk” sort of review sites, they're all going to be negative. So how much creditability is a reasonable person going to give to that kind of content in the first place, you just know that there was an ax to grind in most instances, to give the impulse to put that content on there in the first place. I just wanted to add that, where Lisa was being measured, I just wanted to say, it's a circus.

Denise: Yeah, it's a circus. I don't know enough about Ripoff report, only have come into contact with coverage on it through Lisa and her initial case, and then the subsequent case. I think it's really interesting area of the law to consider, because obviously we want to encourage consumer report sort of sites to exist, we want to encourage people to be able to talk about their bad experiences with companies, and even if they have an ax to grind, even if they are more bitter than they should be about those bad experiences, I think you want that information out there and you want people to be able to judge for themselves what the legitimacy of that allegation is. But is it true, Lisa, that in the complaints against this company, including the one you filed on behalf of your client and maybe others, that there being alleged to taking it further than simply publishing negative commentary, to saying “Hey, you know if you want this off the site, we've got some terms we could discuss with you”. Are there some sorts of extortionate allegations being made here?

Lisa: Actually I forgot the main difference between Ripoff report and a site like Yelp, Ripoff report claims that even if the content that is false, even if you get a judgment against the author of the report stating that it is false, they will refuse to remove the report! Every other website, if you send them a judgment, and I've done it with dozens of websites, if you send them a judgment saying a statement is defamatory and false, they will, according to their terms of use, implement their terms and remove that content, voluntarily. Ripoff report claims that it will not do that, so the only options that you would have according to them, would be to join their corporate advocacy program, which costs – it starts at $7,500.00 and then yearly payments, or you can now do their arbitration program, where then they run the arbitration, I don't remember how much that costs, maybe a couple of thousand dollars, and if you win the arbitration with their arbitrator, they will redact your name from the report. So the main difference is essentially, yes, they won't just, according to them, they won't just take down a report. They sort of pride themselves on putting information up there according to them, and it will stay up there forever, unless you do one of their two programs.

Denise: What do you think about that model, Evan?

Evan: Actually, I'm freaking out because Gmail is down, and  it's been down for like 15 minutes, and I think the whole internet is going to come to a screeching halt here. Oh but oh, back to Ripoff report. That just shows what a circus it is. I hope that program is not making ripoff report a lot of money, I really hope businesses are smarter than to fall for something like that. For the very reasons I was saying awhile ago, I don't see how one can think that a sensible person will really see the harm of something being posted on Ripoff report in the first place. It should be presumed to be false if it's on Ripoff report. That was an interesting point on what you were talking about, Lisa, them not taking that content down, even if it's defamatory or false or what have you. In the 7^th circuit we've talked about this case a couple of times, Denise, The Blockowicz case here in the 7^th circuit, made it clear that an injunction, a court order under rule 65 – civil rules of federal procedures for injunctions, ordering the site to take it down doesn't reach Ripoff report because it's not acting in conjunction with the party, or whatever the language of rule 65 talks about there. So it's quite a challenge to grieved parties who find themselves the subject of content on ripoff report, even to have a remedy from a court to get that content taken down. I can't say it any more strenuously, just the premise on which the site is based seems to lack a lot of legitimate strength.

Denise: Lisa, you gave us another topic to discuss today that implicates section 230 of the communications decency act. That has to do with posting one's mug-shots online, that are in the public record, a site that was doing this actually reached a settlement over it, can you bring us up to speed on that there, and why is this case interesting and important?

Lisa: Oh sure! I was actually emailed this by one of my clients who is kind of interested in this whole type of business model in general. There's a bunch of websites out there who are apparently in the business of scraping what they claim are the public record, posting people's mug shots with their names there. If one comes across this in a Google or Bing search for example, and email's them, they will offer to remove it for a sum of money, that I'm sure in the aggravate can total up to a nice steady stream of income. So this was a class action in the northern district of Ohio in Toledo, I thought it was very creative, the class representative's attorney filed a claim under Ohio's name and likeness right of publicity statute, saying “Look, here are all the people in the country who's mug shots and names are appearing on this website, and the business is making money from the public value of their persona's, in that it's charging money to remove the mug shot, or you can pay extra to have an extradited removal, etc,” and based on that, they reached a settlement. The website apparently stopped doing that. There was a secondary business which was a business that was sort of a reputation repair business, and they were part of the settlement too. I looked at the complaint because I read an article that said the mug shot site had reached a settlement, but I was very curious about what the legal theory had been. This is one of the first cases I've seen where somebody asserted with some success, if you call a settlement a success, just the right of publicity of ordinary citizen's. Some 200,000 odd people whose names were deemed or alleged to have some commercial value, if only the value of having it removed!

Denise: That is a very interesting twist in this case. We tend to think of right of right of publicity statutes as having been enacted with celebrities in mind, people who can point to their name and likeness and talk about concrete commercial value that is there if it's used without their permission. It is good to see someone asserting that your “Joe Blow mug shot photography subject” might be also in the lofty realm of the celebrities world and be able to assert legal rights of publicity and ownership in the ability to control their name and likeness. Certainly not the first time that we've seen that come up, but it's not the norm, is it Evan.

Evan: No, and I think that the shift that we're seeing here is probably the result of the way that media is evolving. When our knee jerk reaction is to think that rights of publicity attach only to celebrities, which really isn't born out by a reading most of the statutes that deal with this, the right of publicity could belong to anyone, with their name, image or likeness being used for commercial purposes, there's really no meaningful distinction in most of the statutes about this, but we think of this area of the law evolving back in the day, where the ability to distribute media was centralized with just a few powerful players, broadcasters, television, movies, the press, what have you, but now with media moving from being centralized to more of a social media, it's natural to recognize the legal expansion, or at least the normative way we think about these things. It's an interesting observation to make as technology evolves to make the legal notions change as well.

Denise: Lisa, I know we never had a court look at these legal issues and pass on them because the parties reached a settlement, but do you think it would have made a big difference if they were not charging money, if the businesses model hadn't been “We'll take your mug shot down if you pay us”. What if they had just been posting the mug shots, and sort of passively getting them off the website through ads?

Lisa: That's a really interesting question. I think that would make it a much harder case because it seems to me that an element of the statute that they were preceding under, was that they were deriving commercial benefit from the use of their name, likeness, or persona, and I could definitely see a court passing on it as a case of first impression wanting to read the statute very strictly, like a quasi-criminal statute and saying “advertising is not exactly deriving benefit directly from the value of the name or likeness so I do think that would change things.

Denise: Do you agree, Evan?

Evan: Here's how I would look at it. I think there's a distinction to be made as to whether or not a website is selling the content itself vs relying on revenue because of the traffic that the content generates, and I'm actually drawing that notion from a decision that I blogged about this past week, about the – and this isn't in our “things to review” for the show or in our show notes, but there's this litigation going on involving the Hulk Hogan sex tape and whether Gawker violated Hulk Hogan's right of publicity, or privacy right – there were several claims in there, by posting excerpts of the Hulk Hogan sex tape on Gawker back in 2012. The court now – the second court, there's been a state appellate court and a federal district court now, hold that Gawker had the first amendment right to do that, and one of the reasons that the court held that the private interest of Hulk Hogan and his privacy was outweighed by the public interest, was because that this was not for commercial purposes. And to drop some really provocative content into our show today, look back to the 1998 case involving the sex tape with Bret Michaels and Pamela Anderson, and in that case the court found that it was indeed a commercial use being made of the tape because the distribution company was just selling the video. But the court in the Hulk Hogan sex tape case said – and I'm just reading from the opinion here, this is on my blog at internetcases.com “We are aware that Gawker media is likely to profit indirectly from publishing the report to the extent that it increases traffic to Gawker media website, however this is distinguishable from selling the sex tape purely for commercial purposes. So I suggest that the same distinction could be made there on a mug shot website where your subscription is ostensibly to come and see the photos, which is more like actually selling the content, rather than having it there and the revenue model be based on “Oh, one in every 6500 users might click on the links there on the right hand side and earn us 3 pennies”, I would think something like that would play into it at a certain level.

Denise: Interesting. I think you've pointed out a case that could be relevant along these lines, Evan, and as we continue to have the web be so ad supported and that be maybe not the primary business model but a really central one, I think we'll continue to run up against this question of whether that's a commercial use for purposes for all kinds of statutes, or not. Let's move on to another story, I said a lot of these have privacy overtones, I think you can see what I mean. This one caught my eye last week, we didn't get a chance to talk about it but I wanted to highlight it for folks because I think it's at least slightly controversial, that – and this is by Adrian Jeffreys over at the Verge – did a story and I guess it was originally reported in the Wall Street Journal, talking about lenders, we've talked about insurance companies looking at your social media bread crumbs seeing what they can glean about your risky-ness as an insurer, lenders no looking at facebook and other social media in order to determine one's credit-worthiness. When that is the case, there's so much consumer protection law that involves the process of lending money that goes to that, I think that that is a real interesting practice that could run afoul of some of that consumer protection law and certainly it's not the first thing that you think of when you get up and post on your facebook page in the morning, is that if you're getting a home loan, if you've made that public, that it could be something that a lender would look at to determine if you are shirking your job that day or not, how likely you are to remain employed. So I wanted to toss that out for our panel’s consideration, what do you think about lenders looking at social media for credit-worthiness, Evan?

Evan: I get the sense that the vox-populi for this would be to think that this is a bad thing, and probably it is, because it's going to involve some judgments to be made that could be based on empirical data that's incomplete. What I mean by that, is a lender determining credit-worthiness, making a judgment about the borrower, it could be judgments on – ultimately “can they pay this money back”, and to break that issue down, they look at what kind of person is this, what kind of habits do they have, what have they done in the past, who do they associate with, what assets do they have? So if we think about looking at social media to help make that judgment, I think the concern we would have is that people only put a limited amount of information about themselves on social media, they try to paint the best possible picture of themselves. Or they try to paint a picture – both of these things could be true – they try to paint the best possible picture of themselves, and-or paint a picture of themselves that is not quite true. Maybe they are a little bit cooler in the picture they paint of themselves on social media, than they actually are, and that might mean they are trying to paint a picture of themselves being more reckless. If I was trying to – I don't want to stereotype or make too many judgments – but if I was trying to portray myself as more of a rebellious type or whatever, I would be more risk taking, I would say this was me doing 120 down the freeway on my motorcycle, when I don't even own a motorcycle. Where am I going with this? I don't even know!

Denise: I don't know, but we're happy to just let you zoom on down the freeway, Evan!

Lisa: On your motorcycle! Where are you going?!

Evan: There's an image for you! So there's a couple of things. If we're going to make these judgments, we want the most information as possible, and that's what I would say against what I feel is probably most people's reaction to this is that this is a bad thing, this is invasive of privacy. And don't we want lenders to make good judgments – the correct judgments? And isn't it more likely that the correct judgment will be made if the fullest data set is available, but at the same time, I think we think that with social media, we think of that sort of as different than just these more objective facts, as to where we work, how much money we have, what our credit history is, and all that stuff. So the interesting discussion is evaluating why it is that this may or may not be a positive thing.

Denise: In the Wall Street Journal, it's reported that FICA that stands for the Fair Issac Corp, a little bit of trivia there, they're the company that provides the credit scores used in more than 90% of lenders decisions in lending to you, it says it's weighing possibilities for incorporating social media, but there are other lenders out there who say they are doing it. Does this give you pause, Lisa?

Lisa: I think the whole thing is a good argument in investing in it-coin. It's the kind of thing that makes me think “Oh internet!” I don't think that – unless some scientific data comes out that actually correlates the reliability of what people post about themselves on social media and some sort of accurate, significant data that can enhance credit profiles, it seems sort of gimmicky. I'm skeptical about how – put it this way, social media is an easy medium to game so how are you going to account for people posting “Hey, I got 5 new jobs today!” or “I'm going sailing on my yacht, where am I going to put all of my extra money?” It seems like an invitation for people to pump up their credit scores. We just had whole financial debacle based on paper millionaires, so I'll believe it when we get some reliable --- that social media is a good place to find accurate financial data.

Denise: Yeah, I love that idea that people are using their linked-in account to boost their credit score, with this in mind! Because you never know, it might be an effective way to get it up there, and the next financial crash we can blame on FICO and its trusting social media as a reliable source of information. I want to jump back a story here, just to drop in our first MCLE passphrase, when we were talking about the mug shot settlement, someone in IRC said that sites that post those photos are called muggies – have you guys ever heard of that term before? I looked it up on urbandictionary.com and I did not get that definition. But since I implicitly trust IRC the way that FICO trusts social media. I'm going to go ahead and make “Muggies” our MCLE passphrase for this episode of This Week in Law, it rhymes with Huggies, if you're concerned. If you're keeping track, or wondering why you would keep track of passphrases, it's for people listening to this show to get either CEU's or other professional education credit in their jurisdiction. We think that there is a lot of good and educational content on this show, this show certainly hasn't been an exception so far, so if you would like more information, if you're a lawyer or another professional where you think might be relevant to you, head on over to the twit wiki at wiki.twit.tv and go to This Week in Law page there, and we've got all kinds of information on what the various jurisdictions, at least for the lawyers require, many of them require that you demonstrate that you actually listened to or watched a program like this so we're doing this for you guys. Alright, lets move on to something else that Evan wrote about this week, in addition to the very fascinating Hulk Hogan and Gawker story. The one I did put in the run down this week has to do with if you are a plaintiff going after someone that you alleged bullied you, what you might have to hand over in the way of discovery. Can you tell us about this, Evan?

Evan: Sure. This is a case that came from the federal court in the northern district of Indiana, a high school student – he's probably out of high school now – sued his school for failing to protect him from being bullied, and the defendant's school district sought discovery from the plaintiff student, and among other things said “give us all your social media”. Every tweet, every status update, I love the boiler plate that seems to have spread virally in a lot of these things, including all the causes joined... Isn't that something like facebook circa-2008? In any event... I haven't been on facebook for a few years, but I thought all that idea was gone even before I left facebook – but in any event, that's totally not the point. Hand us over everything. There seems to be this thread developing in the case law about the  discoverability of social media content in these types of cases, where the courts will say “No, you don't have to turn over everything.” but in situations where it's some form of harassment, whether it's bullying, and we've seen some other cases along these lines when it involves some sort of harassment in the workplace, sexual harassment or whatever other kinds of ill-treatment one might suffer at work. In those types of cases, the courts are saying “You plaintiff making these assertions, only have to turn over social media evidence that relates to your feelings or your emotional state. So that's where the law seems to be going in all of this, when the facts asserted by the plaintiff are “hey, I suffered from this bad environment, and you, defendant are responsible for it”, defendant doesn't get to look at everything that that person posted on social media, but it only gets to look at things that pertain to the plaintiff’s emotions or feelings. And to me that's all well and good, as a pronouncement of what the law is, or what the law ought to be, but what practically speaking where the rubber meets the road, and you actually start culling out which pieces of content the producing party, the one having to turn over the information has to turn over, in the discovery process here, actually separating those things which pertain to your emotions and which don't seems to be very difficult, to the extent that if it's vague or difficult subject to abuse and non-compliance. At what level does a piece of social media not pertain to your emotions or feelings? Some things are very clearly subjective, like “here is a link to a story about the Hulk Hogan sex tape.” but that's different than “Here's a link to a story about the Hulk Hogan sex tape which I found to be very intriguing.” Was that second one – did that reflect my emotional state, that I was intrigued by the Hulk Hogan sex tape? Let's not even go there! How do we work that standard, that it is what the law is when it comes to the discoverability of social media content, but how is it really workable when it really comes down to working in the trenches, these poor first and second year associates, working in the law firms deciding what actually turn over in discovery. How do they really make that standard work?

Denise: And just to bring you up to speed, yes facebook still has causes, I just went and checked, they have a whole page type for causes, and yeah, that could certainly be, even though that's in the boiler plate where you could see that somebody's emotional state could be arguably gleaned by looking at the causes they had joined on any particular day. Any thoughts on this, Lisa?

Lisa: I actually was served with similar sort of discovery request, and one of my responses was “I am not the custodian.” I don't keep back logs or backs of things that I posted on social media going back years. If someone wanted to discover tweets I had written going back a few years, I would say “Fine, go ahead, it's in the clouds, go find it.” I think that the real significance of this sort of ruling is again sort of an attempt by the court to catch up with what social media means to people nowadays. Personally, if it's a bullying case, I sort of am skeptical about the relevance of emotions as expressed on social media at the time, and I feel that it's probably liable to do more psychological and emotional damage to the plaintiff to force them to sort of re-live that, or parse through their private social network communication. I was thinking about this, I would like to read through the reasoning of the court in determining that this was relevant. I think that the main problem in implementing such a discovery rule though, is whose job is it to go through the social media posts going back in time? I don't think that most people really collect it. That's something that you're going to have to turn to the product to get, and at that point...

Denise: That's a really interesting point, especially as you're talking about trying to go back in time, you certainly have no control as a user over how much of your social media account you have access to, in the case of something like Twitter which just cut off what you have access to. But on the first point, you might find yourself even though you're not the primary custodian, it's not residing on a server, you do have access to the account, so if you were asked to go and find your posts that you did have access to, presumably you could at least get them, I mean you could view them and print them and turn them over. What do you think, Evan?

Evan: I wouldn't find it very persuasive as a judge, if a litigant appeared before me and said well, Judge, it's on the facebook server, so therefore I shouldn't have to turn it over. Especially if this were in federal court, I certainly can't talk to the majority view on what the state rules of civil procedure say on this, but the federal courts, rule 34 talks about an obligation that a producing party has to turn over information that is in its possession, custody or control. The case law that interprets that provision in the rules, not only in the social media context but in other situations when the information is with a 3^rd party, make it very clear that it's a document or discoverable evidence is in your possession, custody or control, if you have the legal right to access it. So it may not actually be in the file cabinet in the four walls of your office, it may be off site somewhere in a warehouse or something like that, it's not literally in your possession or custody then but it's in your legal control because you have the legal right to go and use the key that you have to go and get it in the warehouse across town. That's why I would not be persuaded to think that it wouldn't be within the scope of the information that it's discoverable if it just resided on a server somewhere if I didn't have to violate the computer fraud and abuse act to get to it.

Denise: Alright so that's a good Segway because we haven't talked about the computer fraud and abuse act, and we have the opportunity to do so now. Tell us how one might find love on OKcupid by scraping the site, Evan.

Evan: Hmmm, I guess I would talk to a mathematician, right?! Yeah, this is an interesting situation. This guy, where is he? Somewhere out west, everything exciting happens out there. I don't understand exactly how it did it, but he's a brilliant mathematician, he recognized that the method – it was in Los Angeles, now I remember, the fact that registered with me was that he lived in Los Angeles and there were 80,000 women from Los Angeles signed up with profiles on OKcupid but he still couldn't find anybody meaningful, so it's coming back to me now. So he recognized that the way OKcupid works is you answer a series of questions, not everybody answers the same questions but the algorithm matches perspective, comparable parties – couples, based on the matches you have with the selection of questions that are answered in a certain way, and he recognized that wasn't working for him. So Adam Penenberg over at Pando wrote about this, he was actually writing about an article on Wired, I forgot who wrote the Wired piece,

Denise: Kevin Poulsen

Evan: Yes, of course. So this mathematician guy writes some python scripts, that goes and scrapes – well first of all, he goes and sets up some bogus profiles on OKcupid, and wrote some python scrips to go and cull a bunch of information so that he was able to ascertain more information than he could as one individual users, about attractive prospective matches. And he used that then to put himself in a position to be more compatible with these women on OKcupid, there by hopefully enjoy more evolutionary success on passing his genes on to the next generation, right, isn't that what math is all about. So the question became then, did he violate the computer fraud and abuse act by doing what he did, and the more specific question would be by setting up these bogus accounts on OKcupid? And was he as evil and deserving of 35 years in jail as Aaron Swartz was, and also, by scraping all this content with these python scripts as well, so its interesting theoretical question.  I don’t think he’s been arrested or the feds aren’t after him or anything like that but there’s this interesting question. In doing that, did he violate the computer fraud and abuse act and commit this awful crime just trying to game the system and have more success on Ok cupid. Interesting story!

Denise:  Do you know what OKcupid’s response has been to this? Did they deactivate his account? Do you, how do we even know that this happened?

Evan: Ya, I don’t know, I will have to look into that story. That’s a good question, I didn’t really think about that.  I guess we would look at the Wired piece, you know, Kevin Paulson goes into a lot of detail about it there. Go and talk amongst yourselves. I will go and try to find an answer to that.

Denise: (laughter) OK, Just say “hey”

Lisa: According to the Wired story, OKcupid’s computers noticed he that had these bots that were scraping the site of data in unusual ways, and they would sort of regularly deactivate the accounts associated with those bots. So, the guy also had to reverse engineer naturalistic behaving bots that would mimic the actual browsing activity of an actual OKcupid user. It’s just a genius article, I love the story that Wired did, and I love what the guy did. Living in L.A., it’s just a fascinating clutter of empirical information.

Denise: I sense this guy’s credits or credit worthiness rising, even as we speak because he’s imminently employable based on these talents.

Lisa: Oh, definitely, I mean he got the stylist, the Wired article describes him as tussled hair, and blue eyes, you know (laughter)

Evan: He’s so dreamy, why’s was he having trouble on OKcupid? I’m sure he’s found a date now. You know?

Lisa: actually, you know the interesting this about the article was that OKcupid’s algorhythms count not only the survey responses but also the relative weight that the users placed onto the answers. And it seemed all sort of random and guess work, so he had to determine,  not only what the sort of   right answers were for women that would be compatible with him but also how much  relative weight each of the users would place on such types of answers. And what I thought was fascinating was the correlations. They were just clusters of similarities between certain users. Like he had two groups of women that he sort of settled upon, one the, you know younger, 20 something creative types, and they were more likely to live on the east side of town and have a tattoo. And he called that cluster “tattoo.”   And then there was an older group of women, who were in this eligible group who were more commitment minded. And they were more likely to have a mid-sized dog. So he called those “dog”. It’s just a really cute article. Yeah, he definitely has some skills.

Evan: But, is that a little bit creepy? I mean you two as women, thinking back to your earlier days. If a dude was compiling information would that be some kind of an indicator of how he would be in a relationship with you?

Denise: AH, yah. (Laughter) let’s just say, I would have a really strong password on my phone. (Laughter)

Lisa: I mean, it’s, you know, there’s always on the internet a corollary for every maxim. And I think this one that applies here is “stalking is caring.” (Laughter)

Denise: (laughter) Exactly.

Evan: Yeah, I’m glad I’m always I’ve always tried to put that laid back vibe out there. So that’s worked for me so far, I’ve been married for 12 years. So far, you know any way. If I’d only been smart enough to do something like that who knows?

Denise: yeah, one could look at this and say he just he was making a better OKcupid, but a personal one. So fascinating, there is no legal ramification to this at the moment. It’s interesting that there could be, because of his gathering up of the data. Another interesting computer fraud and abuse act case that Professor Goldman wrote up at the very end of last year. It was a little bit, it had been in his tank, as far as things to post on his blog for about a month at that point. Because he thought it was such an interesting case, he was thinking of putting it on his delightful internet law exam. but didn’t do that so then he finally posted his write up of this case. The reason he, I think, thinks it’s so delightful is because the company that was complaining about having been scraped is a company that contracts with governmental entities like counties and cities to make public records available online. So having made those more readily accessible, it then got a bit huffy when someone was scraping their data, and using it in ways that, I guess their own terms of service.  Fidlar was the name of the company.  Fidlar Technologies didn’t authorize. So the two parties, Fidlar sued this other party, which is called LPS. It’s a data analytics company that primarily aggregates data relating to real property rights.  Professor Goldman here, it often goes to counties directly but if  that’s  not feasible, it obtains a subscription to access the counties data and has the option of getting the data by microfiche, etc. So I guess, it just looked at Fidlar and went “well, that makes our lives a whole lot easier. They’ve got all the data, we’re just going to scrap it.” So the two companies sued each other, and in fact LPS sought an injunction to keep it from being blocked on Fidlar’s site.  As far as I can tell the case is still pending because what was decided here was whether LPS, the scraper would be entitled to a preliminary injunction and the court decided “no”. So some interesting ramifications and analysis under the CFAA. There was no, well actually the court didn’t rule on whether there could have been a trespass to chadels. And that claim is still alive.  That’s the claim that could say that possibly the activity affected the functioning of Fidlar’s servers. So they may be able to get some mileage out of that, depending on the extent of the impact they can show. But the court did find that it did not think that data was something that could be trespassed. So, under the CFAA though, the court found there was not a threshold damage showing and decided that, let’s see am I reading this right, Evan?

Evan: Yes, it did find there was a threshold damage.

Denise: I thought I was going down the wrong road there, yes. So was the injunction granted under it?  I think the injunction was denied across the board. Was it not?

Evan: Yes, I thought this was a motion to dismiss.   That’s how I was reading it but I might have been going down a primrose path when I was reading it as well. But all I do know is that the CFAA claimed, that the court did find that it did assert damages. Which is always usually a pretty important  part of pleading a computer fraud and abuse  claim because  it has be some sort of diminution of the system here so that goes forward. It didn’t get knocked out.

Denise: Right, so it stayed alive, too. Any other thoughts on this case?

Evan: Well, this is one of those situations where you kind of go back and forth and see both sides and bring in doctrines from other areas of the law to support your wavering from one side to the other. .I mean you know copyright law for example, since 1991 in the Fife’s cases, done away with the sweat of the brow doctrine.  Which would do away with any sensibility you may have to think, Well Fidlar worked so hard to obtain this stuff, it ought to have some sort of protection on it then. Then you’ve got the side that’s saying these are public records and just because a private entity has gathered up public records why should they be entitled to have exclusivity to them and not be forced to allow other people to access them? But then you can say, “well, going back to my warehouse across town scenario that I was talking about in the last discussion here. If they’d made photocopies of all this stuff, you wouldn’t think, “Well, you ought to be able to just walk right into their office any time and take copies of the paper that they’d made. So it’s tough.  The fact that data scraping technologies allows us to do this. In it’s ostensibly information that is not subject to another form of intellectual property protection. It’s not copyrightable, it’s public information. It becomes a tricky scenario as to how to give credit and legal protection to the effort when private enterprise has made to have this data existing somewhere and allow the conditions on access to it.

Denise: Right, Professor Goldman wraps it up by saying,”I put this lawsuit in the same category as “Red-light cameras and the DOD, licensing of public domain photos. All too often, we see private vendors and government entities conspire with each other to charge public citizens a second time for services the government has already been paid to do. But as you say, Evan, even if that the kind of arrangement they’ve set up, there doesn’t seem to be anything illegal about it. And then, when you throw the CFAA and trespassed channels into it. Is okay just because its public records data base, to go ahead and access the site in a way that someone like Fidlar hasn’t authorized? What do you think, Lisa?

Lisa: Oh, I think it’s very similar in a way, I think to the case involving Aaron Schwartz and Pacer. You know, he decided he was going to liberate all these public record court documents by writing scripts that could just download massive amounts of court records. And normally, Pacer charges a few cents a page for that and apparently there was a day or two that they were providing unlimited amounts of court data. And so, I think that it’s sort of a question of where do you want to create economic incentives. Here the makers of Fidlar, or actually it’s Laradeo-Fidlar, I think is the company.  They created a useful service, and I think it may have been Vencap Vusamnia who wrote the article on Professor Goldman’s blog. I’m not sure if it was Goldman or Vencap that did that.

Denise: yeah.

Lisa:  But any way, he puts a lot of political glosses on it. I mean, ultimately, I do agree with Vencap.  That there shouldn’t be too much rent taking and profiteering from what should be public records. But also if you have a license and you’re going to license out your proprietary software product. I guess you can assert your terms of use. I think the interesting question was whether, and I didn’t read the case carefully enough to discern this, whether there was anything specific in the terms of use that would have prevented the defendant from doing this. Because if you are going to write, so basically what the technology was, was  if it had sort of a skin that was somewhat proprietary, that required a user name and  password to get into the public records but apparently once you typed in your password and user name. The product ran fairly standard protocols. So it was very easy for the defendant here to sort of engineer running those things automatically once it was inside the system. But the CFAA was pretty vague and it’s pretty broad, and it says that if the plaintiff suffers $5000 worth of damage you can bring a claim. And that can be $5000 even just in “remedial measures”, so that’s pretty easy to allege. And you know, I guess we’ll see if the court thinks that is the type of unauthorized or excessive or acting in excess of authority, that the statue was designed to prohibit. So on one hand, it’s a pretty untested area of law. I don’ t know what the dollar amounts are involved, but eventually over time you would hope, that county property  records are something that’s fairly accessible and fairly affordable to the public. So I definitely agree with Vencap’s gloss on the case there.

Denise: Alright, well, you’ve raised the spector of Bitcoin a little while ago, Lisa. Let’s talks about this piece that Evan pointed to earlier in the week on CNN. Written by David Z. Morris, who .calls “Bitcoin, Napster for finance” talk about it and its   secondary headline. Where is he going with that, Evan? And how is he making that analogy?

Evan: Well, in the fact that it’s a decentralized form of finance and the implications could be much broader for it in the future. Then just the fact of the Bitcoin protocol and the notation of decentralized finance could have broader implications in the future for more robust forms of self-executing financial transactions and confirmation of transactions. Much broader than just sort of buying drugs on Silkroad. So he outlines in a very sophisticated way, sort of a smart finance of the future where transactions are much smoother, much more automated and it seems to, if anything even be broader than then notion of what we know of Bitcoin now. But Seeing kind of  the whole fundamental shift in the way the financial sector works into a more decentralize method than what it is now with investment firms and banking and the like there. So you know its complex it’s a very erudite, esoteric piece. I thinks it’s interesting to see kind of a sensible look into the future of where alternate forms of finance could be going as these things take off.

Denise: Yeah, I’m going to go ahead and reveal my own just deer in the headlights lack of appreciation for the whole Bitcoin universe. Even though I read that little article that we violated I forget if it was   last week or the week before, about as explaining Bitcoin as though you are 5.  He tossed a question out to me that I couldn’t answer So I’m asking you guys and IRC, as I was describing how does one gets Bitcoins,   Well, one purchases them, correct? You buy them from someone who already has Bitcoin. My son’s question was “well.  Who made the first Bitcoin? Evan, try and set me straight. Where does the money go? Is it just a pyramid scheme?

Evan:   I just, you have to ask Jerry Brito, I’m not going to try to answer anything.  Really he was on the Vice podcast sometime in the last couple weeks. Since the beginning of the year, I would recommend that to everyone, he’s a friend of the show has been on here a few times. It’s an hour long conversation, kind of Charlie Rose style with Jerry Brito talking about Bitcoin, and some of fundamental concerns, like what your son was raising and also very visionary into the future  as to where it’s going.  So I would recommend that, it’s on Youtube the Vice podcast of Jerry Brito.

Denise: Mick Anarsee says people just donate them. So I guess that’s how we get the way we get Bitcoin we buy them or mine them, I don’t know. The mining thing is beyond me too. But the first person who came up with Bitcoin and sold it to; in the terms of the article about explaining it to a five year old, you have an apple and sell the apple. The apple has some intrinsic value I guess someone decided the first Bitcoin had intrinsic value. But I don’t know how, does anyone know how they control the supply of Bitcoin. How more Bitcoins are put into the market, since it’s decentralized, it that controlled by any sort of...

Evan: I mean, the way new ones are put into the market, is that they are mined.  That involves modifying the original, the whole block chain that’s going on there. You have to have a very powerful computer to generate more, and that’s kind of interesting in itself.

Denise: Alright, my son and I are going to sit down and watch Steve Gibson on Security Now, and try and figure this all out. Lisa, any thoughts on the Napster analogy here?

Lisa: Yeah, I do have a couple thoughts, I found the comments to that article very entertaining because the top voted comment was saying well, actually it was more like the Bittorrent of currency because Napster had centralized servers where Bittorrent doesn’t. The point is the same, it is disrupting a very sort of profitable and mysterious industry. You just think of all the pseudo value or value created on Wall Street for trading, currencies, swap, defaults, and all those kind of things. And you think, where are all these millions of dollars coming from? What justifies these salaries and you see articles all the time about wealth becoming more and more concentrated in the upper percentile. So I too am very intrigued by Bitcoin, and I like the idea that it’s built very deliberately from what sounds like a very sensible protocol. Maybe we should all go to that Bitcoin conference in May that you re- tweeted on Twitter that somebody is putting on to understand it. My understanding of it, is that mining comes somehow from some creation of value, some work or some labor that according to the Bitcoin protocol is eligible to create new Bitcoin. But that’s totally off the cuff, what I do think is fascinating is how more and more of these mainstream retailers and companies announced that they are accepting Bitcoin as currency. So, I think we should all figure that out. Seems like a pretty exciting time.

Denise: Yeah, right sooner than later. And spring I guess is coming, that’s good. Let’s give that conference a plug. It’s Rich Santalesa. Its richnet@twitter. He is organizing a conference to review legal tech and other implication of Bitcoins. That’s probably a good thing to give a lot of thought to. Evan, you spotted that, I think.

Evan: Yes, I know Rich. And I saw that he had tweeted about that. It’s just kind of in the formation stage right now. There hasn’t been a date set but Rich is a smart guy, a good guy. He’ll put on a good conference. So, it’s like an invitation now for us to get together and come up with ideas and see what he could make of this. So it will likely be in New York City, around there. Everybody should follow Richnet on tweeter and see what he’s got in the works for that. It looks promising.

Denise: Good. Good alright. Let’s do an Entertainment related story to wrap things up.

ENTERTAINMENT LAW

Denise: So, it’s been the case for a while, that if you walk into a movie theater with your hand held camcorder, take it out, aim it at the screen, start recording the movie you’re going to get yourself into a world of hot water with the movie theater owner, the MPAA, etcetera. And you may well find yourself prosecuted for doing that. Well should the same thing happen if you walk in there wearing your Google glass, apparently, that is the kind of experience that a person had when they went in the theater wearing Glass. This person, I’m trying to find his name, I don’t know if that’s publicly part of this story. but I’m not seeing it here.

Evan: When I saw this story, it wasn’t. He was staying anonymous when I read it.  Maybe it’s out there now.

Denise: It’s a man, he went into the theater wearing Glass and was questioned by officers of the Immigration and Customs Enforcement Bureau, so the ICE folks. Who actually, it gets down to our border search and discussion on when you have to give people access to your devices.  They actually plugged his Glass into a laptop and he, I guess, authorized them to go ahead and have a look.

Evan: I hope he hadn’t downloaded that new sex app. You see about that on Glass, but any way. Go ahead.

Denise: Yes, let’s hope he hadn’t, that can be embarrassing, but they started going through his personal photos and things and just determining that indeed he hadn’t recorded the film that seems like a problematic    aspect right there. But just the fact that someone, we all have phones in our pockets when we go to movies. The ability to make a film of a film clandestinely certainly isn’t limited   to wearable technology like Glass. You can certainly do it a lot more stealthily than the example that I began this discussion with. Holding up a rather obvious looking camcorder! So, Evan what do you think about this?

Evan: Don’t we just love stories like this, where cops look like idiots because they don’t understand technology. Oh.  Look at this guy he’s being trampled on and all this stuff like this. The obvious comparison, is with the woman who was arrested and later acquitted for wearing Glass while driving. I think the issues in that are very different, because there is a bigger issue of public safety. But isn’t it interesting, you get the full weight of the federal government.  Well, I’m overstating that but you get the feds coming in and the picture that would be painted for us would be they really strong handed this guy over potential content piracy. Isn’t that just, doesn’t that just play into the narrative that’s so fun to talk about here. About sort of the ridiculous aspect of all of this and so . . .

Denise: The story is so strange what’s up with the officer identifying himself as Bob Hope? I mean really, I guess it could have been his real name, but you certainly wouldn’t . . .

Evan: Well, did you see that Will Farrell sued Apple this past week some people just . . .

Denise: Yes, yes I did see that, not that Will Farrell

Lisa:  Oh, not that Will Farrell.

Denise: (laughter) exactly, another Will Farrell. So maybe there’s another.

Evan: I don’t know, it was some dude named William Farrell.  He’s a plaintiff in a class action lawsuit against Apple, 

Denise: And maybe this officer is some dude named Robert Hope but it just seems too strange in this kind of story.

Evan: We could hope, but the whole point of this is, there’s a learning curve on these enforcements.  There are two things really, there’s the learning curve in enforcing the rule of law and order, and things when technology presents strange new things. But then there’s also the absurdity of the overreaching sensibilities of protecting content from piracy. So those two things combine here to make a funny story. It’s good to talk about. Obviously, the third element being Google Glass, I guess that’s already one element so yeah, there are just a couple of things that mix up together. It’s a good story to talk about.

Denis Howell: yeah, the other thing that was interesting is apparently there was some MPAA representative just hanging out in this movie theater. Who I guess was the precipitating force behind calling in federal agents on this guy. Which you don’t necessarily think of the MPAA surveying movie theaters around the country.

Evan: I think they swooped in the very same helicopters that were in New Zealand to get kim.com last year. When they landed on the roof and came in through, they repelled in from the ceiling to the movie theater, that the report that I read.

Denise: Yes, Big Content is watching you. Lisa, what do you think? I mean obviously, this guy, there are a few different levels to this, I think it’s disturbing that they asked for, and he went ahead and let them. Even though he was not under arrest or being charge with anything, take a look at what was on his device. It’s the same as turning your phone over and saying, “Here, take a look.” What do you think about that? 

Lisa: I think it’s a bizarre story, all around. I think that, I mean it’s such a first world problem, “oh, I paid to see the first Jack Ryan movie, and they took my Google glass.” I mean it’s such an unusual accessory. I mean, it just seems to cry out for attention. How about not wearing your Google Glass to the movie theater? And then on the other hand, is this really our best use of tax dollars? Here you have a guy, he actually paid   to go to a movie theater to see a movie, like why are you targeting your activities on this guy? I mean I know what they are saying, he may have been surreptitiously recording the film, I mean somebody could, I don’t know that well how Google Glass actually operated, I know you need to write like an essay and pay like $800 to get Google Glass, so it’s sort of a nonsensical story all around.

Denise: This person’s were actually prescription. Now presumably he has another pair of prescription glasses he could have worn to the movies, but it’s like you’re going to put your phone on silent and leave it in your pocket and go to the movies. And maybe this was the person who uses Google Glass like their phone, it’s just part of their tech that they bring around with them and use in their daily lives. And, yeah, it’s a first world problem but it’s a first world forward looking problem as wearable technology becomes less of a novelty and more part of the fabric of society. Are we going to see more and more of over reaction? What do you think, Evan?

Evan: Well, I mean, it will be in different forms, sure, as technology becomes more integrated.  This is kind of becoming a theme that we are talking about. It’s only going to get more. Once law enforcement and the powers that be, both in the public sector and private sector, learn to deal with something as external as Google glass. Technology will become integrated and brought into the body even more, within I don’t even want to guess how many years, it’s probably shorter than any of us could imagine. You’ll be able to record high definition film through your contact lenses probably. That sounds like total science fiction now, but thirty years ago, the smart phone and so many other thing, the fact that we could be having this conversation now across country like this in high definition video with just the equipment that we have at home, its mind boggling. So sure, there will always be stories like this just taking different incarnations.

Lisa: Well, one idea that I had about this was, we say in Hollywood, “No bad publicity” I mean, we don’t even know if this isn’t a giant publicity stunt by the producers of the movie. The guy is anonymous, after all. No bad publicity, so maybe next week we will hear that this “Bob Hope” and this Google Glass wearer was a joint marketing effort by Google and the MPAA. But they should work together, they should have a QR code or something that the Google Glass user could scan over to assure the movie makers they are not going to be pirating the movie. I’m sure it’s coming.

Denise: (laughter) exactly, as you say the MPAA does like to get out its message that if you have technology that can record a movie on you. We are going to be watching you so they want you to get this message. Let’s make “MINDBOGGLING” our second MCLE pass phrase for this episode of “This Week in Law” so we have ‘MUGGIES” and “MINDBOGGLING” so we have two double “G” constant ones for you. So keep track of those and let’s move on to our resources and tip of the week. Let’s start with our tip, which is very much in line with a lot of the stories we’ve discussed today about people using the communications decency act as a shield for conduct that most people would say is deplorable. Hunter Moore, our favorite villain, we love to chat about has actually gotten arrested. There’s a great story giving all the background on this over on Cash Hill’s site “The not so private parts”. And the tip that I cobbled together out of this has to do with a woman named, I think her first name is Kayla laws, she was really the driving force behind Moore getting arrested. She’s a 25 year old aspiring actress, who I think, did not agree with the no publicity, is bad publicity premise because what Moore and another person is being accused of here, as though as they were not getting enough pictures submitted to “Is anyone up?”, they are alleged to have hacked into people’s Gmail and yahoo accounts to try and find nude photos there that had never, may never have been shared with anyone else. And that’s what Kayla law’s says happened to her.  That she actually had some photos of herself that were only in her email account that she had taken with her phone and then emailed to herself, that they hacked into her account and got. And when she went to law enforcement, describing this and saying how her account must have been hacked to get these photos that ended up on Hunter Moore’s site.  She said the first detective at the LAPD that she talked to was unsympathetic but then she went to the FBI. And told them that if they helped Scarlet Johansen after her naked photos got hacked, they had to help Kayla too. So there’s our tip of the week, invoke Scarlet Johansen whenever possible if you want to achieve an effect. And apparently that actually worked, because one of the prosecutor who went after Johansen’s hacker is listed as one of the prosecutors on this indictment. So, at least the FBI is listening to arguments, that they should be consistent. Evan, any thoughts on Hunter Moore deciding that they weren’t getting enough photos, even though they told Cash Hill when she interviewed Moore; he said he had an almost endless stream of photos coming into the site. Apparently that wasn’t enough. According to these allegations and this indictment any way, and they went a step further

Evan: Yeah, well I mean, there’s so much to say about Hunter Moore but most of it’s not even worth saying, because he is not worth using the brain cycles to formulate it. This is, it’s been a long time coming, there’s been the grand jury that was looking into this, and then the indictment was just unsealed yesterday when he was finally arrested. It’s been interesting to see this happen, because I had several victims from anyone who contacted me over the last few years, who were, who swore up and down that this was happening to them. So it’s really interesting to kind of see the whole picture start to develop here of something much more nefarious than posting the site itself of this backend activity that was going on in trying to get these photos in an unscrupulous way and that ultimately just cuts the Gordian knot of the difficulty of prosecuting him for publishing the site. This other thing, this violation of the computer fraud and abuse act and violation of other laws, including identity theft. Ultimately, is what prosecutors can hang their hats on. It’s interesting to see that it came around this way.

Denise: Lisa, want to weigh in on Hunter Moore getting arrested?

Lisa: Yeah, I was reading the articles about it yesterday. It looked like he had sort of ceased the conduct before he was actually arrested and was trying to shut down his website back in April in 2012. It just take the wheels a little bit of time to turn. I don’t know about other states but I think that California criminalized this same this last year. Basically they added a gloss on the existing statute that said anyone who sort of hacks into a closed system to get explicit photographs of you specifically to post them without your consent is guilty of a crime. And I remember thinking of that at the time, when I was looking at that statute.  , One of the interesting think about it had been drafted with an exclusion for anyone that you had sent them to. Typical case, you get a call from someone who says “oh you know I gave my boyfriend photos of me, and we broke up and now he’s posting them.  In that scenario, the California law wouldn’t apply. But here’s a case that clearly was exact kind of conduct that the law was intended to deter. I think he deserves what coming to him I mean It’s a horrible thing, so we’ll see what happens.

Denise: Yeah, I don’t think the communications decency act is going to ride to his rescue here. Let’s give you a couple of resource too. I heard from Eric Sternberg who pointed me towards his site, “The Supreme TV” and the court supreme is this fictional court that he has created. In which, he is planning to put all of online culture history, science and literature on trial. He has a number of videos up already. We have one cued up, to show  you just what, to show you a sample:

“Resource of the Week: Speaker #1: My fellow patrons, brings before us today a matter of larceny. A conceptual thievery most foul.

                                               Speaker #2: Short, keep it short

Speaker #1: a thousand apologies, your lordship. My patron, Knightman is demanding that the accused the urban rebel, known as Nightingale must immediately desist from using my client’s trademark during his vengeful activities.”

Denise: (laughter) he’s having some fun. He’s created this fictional court, “The Shield, the Sword and the Eye”     are the defense attorney, the prosecutor, and the judge. And he has 4 or 5 different episodes now where they dramatize some sort of legal issue. It’s a little bit like when Cue puts people on trial on the “Next Generation”. I sort of have that feel from it. It looks entertaining, and he did say that he had been inspired by watching our show, to create his own content and put things online. I don’t know if we are being socially engineered there to give “The Court Supreme” a plug but happy to do it. It looks interesting. Also want to give a plug to
Warren Allen and friends, the folks behind the legal hack-a-thons. Where we get smart people together and try and come up with solutions to difficult legal issues. They have a data privacy hack-a-thon coming up on February 8 thru 9 in Mountain View, New York and London. All on the same day. Do check that out, if you are some who is interested in data privacy, and have good  ideas to contribute. Would be great to have you do that and attend and make the world a better place.  The legal hackers also have lots of resources on their site. And one Id’ like to highlight is their “hacking revenge porn” session. This was just put up on January 14^th, so since we have been talking about revenge porn and revenge porn laws. Here’s where the ideas and solutions that were suggested at the legal hacker event. For that bearing in mind that as Lisa pointed out, California has a criminal revenge porn law now and as does New Jersey, as far as I know no one else does. The states are still trying to wrestle with this and these folks at the legal hackers are definitely trying to help them. So check this  out, if this is something you are interested in. we are certainly interested in having you join us every week when we do the show on Fridays at 11 o’clock Pacific time, 1800 UTC.  If you have that time slot available for us, we thank you. You can find us just at Twit.tv; go watch us live but if you can’t do that. You can certainly come catch up with us on your very own schedule, by going to Twit.tv/twil. We have got our archives of shows there. Also if Youtube makes things easier for you, we’re there too. On Youtube.com/this week in law. On iTunes, on Roku, My Roku just died, the one that we’ve had since the beginning of Roku.  I get to set up whatever their newest model is. Model 3. I’m hoping t when I log into my account, all my channels just comes over, and my twit channel is certainly I enjoy on Roku. What else, it’s just been such a fun show. I’m so glad that we could circle back with you, Lisa. Can’t believe it’s been a year, where does time go?

Lisa: I don’t know. Making Bitcoins

Denise: Yeah, you and I have been talking about getting. Yeah, you’ve been   mining Bitcoin the whole time. You and I were talking about getting together for lunch. We haven’t managed to do that

Lisa: Yeah, it’s only taken three years, I will hit you up off line. It’s been a pleasure and you know this internet keeps evolving at light speed. And it’s always nice to fun to you and Evan so thanks a lot.

Denise: Thank you so much for joining us today. Evan, great to chat with you

Evan: Yes as always, same here, really enjoyed it. Lisa, great to chat with you, if you’re ever coming back home to Illinois be sure to reach out... and we. .

Lisa: Definitely, hang out there in the polar vortex.

Evan Brown, Yes, it’s chilly. You’re not missing a thing. It’s the wind today Yesterday on my way to the city when I got out of my car at the train station, heard on the radio minus 23 wind chill. So I stopped and said to myself, remember this moment, this is what winter is all about. Stay where you are.

Denise: Stay warm, Evan, we’ll hold down the fort here on Southern California. Where we definitely need rain. So if anyone knows any good rain dances for us, please do them because all of CA needs rain right now. We could use some of your snow, but we’ll let you keep the wind, Evan. Also if you’re going to do an interesting creative show about courts and star chambers or any other reason to contact us. Do that, we’d love to hear from you. I’m Denise@twit.tv. Evan is evan@twit.tv.   He’s internetcases on twitter I’m dhowell there. We’d love to hear from you any way shape or form that you can cobble together. We have a Facebook page, for that purpose and a Googleplus page, and a  Googleplus community. Hit us up, let us know ideas for this show, for guests, your comments and feedback about things we’ve discussed and things you think that we should be looking at down the road. Lisa before we wrap anything that you want  to bring us up to speed on except for the fact that people going south by southwest should look you up?

Lisa: Oh you know, just the usual lawyering, managing hit me up on twitter @lisaborodkin.com or on Facebook. Evan I didn’t know that you weren’t on Facebook. I thought you had just unfriended me for some reason that I couldn’t fathom. That suppose you wanted to keep your credit worthiness up and you thought that deleting me would help.

Denise: (laughter)

Evan: No. that’s right, I want my credit to be as good as it can because one of these days I’m going to trade in my 1998 Nissan maxima, so I can get out of this weather.

Denise: oh look were snowing on Evan. Close up skylight.

Lisa: well, let’s not be strangers and let’s stay on top of all this good stuff.

Denise: yes, definitely. Thanks, again Lisa. We’ll talk to you soon I hope.

Evan: Yes, sounds good.

Lisa: Alright have a great weekend everyone

Denise: Alright, and everyone out there indeed have a great weekend... And we will see you next time on This Week in Law.

Executive Producer: Leo Laporte, Hosts: Denise Howell, Evan Brown, Guest: Lisa Borodkin, Producer: Denise Howell, Technical Director: Alex Gumpel, Editor: Victor Bognot