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Posts Tagged ‘Facebook’

Facebook and Twitter: More Transparency for Political Ads

Posted on: June 4th, 2018

By: Amy Bender

In the wake of the alleged Russian interference with the U.S. presidential election through targeted Facebook ads, both Facebook and Twitter now have imposed conditions for political campaign advertisements. Since there currently are no legal requirements for posting political content on private social media platforms, the platforms have the freedom – and, some say, the responsibility – to create their own policies in order to regulate the content delivered to their users. Facebook and Instagram (which Facebook owns) now require that political ads be labeled with information such as who funded the ad, the campaign budget, the number of viewers, and their demographics. The information also will be stored in a searchable archive. Twitter will require advertisers of political campaigns for federal elections to identify themselves and prove they are located in the U.S. Further, it will not allow foreign nationals to target political ads to U.S. residents. Both platforms have cited increased transparency as the basis for these changes. Facebook also has been under scrutiny since the Cambridge Analytica/user data breach incident, as we reported here.

It remains to be seen if these measures will help regulate political content and if more social media platforms will follow suit.

If you have any questions or would like more information, please contact Amy Bender at [email protected].

Countries Around the World Are Investigating Facebook’s Cambridge Analytica Event

Posted on: April 26th, 2018

By: Allen E. Sattler

On March 18, 2018, news broke of the Cambridge Analytica event where the data of an estimated 87 million Facebook users was disclosed to the UK-based political consulting firm.  The breach of user data resulted in several U.S. investigations, including by Congress and by the Federal Trade Commission (“FTC”).  Facebook entered into a consent decree with the FTC in 2011, where Facebook agreed to never make deceptive claims concerning users’ privacy and to obtain users’ informed consent before changing the way in which it shares their data.  The FTC is investigating whether Facebook violated the terms of this agreement which carries a possible $40,000 per-violation fine.

On April 10 and 11, Mark Zuckerberg appeared before Congress where he testified that Facebook failed to protect its users’ data and that Facebook “didn’t take a broad enough view” of its responsibility in ensuring the privacy of its users following its initial discovery of the Cambridge Analytica event.  He also accepted personal responsibility for the matter as the company’s founder and CEO.

What might have been lost in the flurry of domestic activity is the amount of scrutiny Facebook is receiving by nations around the globe.  This breach involved users from many countries, with over 1 million affected users in each of four different countries.

The European Union launched an investigation into Facebook on March 19, and the United Kingdom and Australia quickly followed.  Under Australian privacy laws, the government has the authority to issue fines against Facebook of up to $1.6 million if it determines that Facebook violated those laws.

Countries of southeast Asia soon followed with investigations of their own.  Indonesia, which is home to over 115 million Facebook users, 1 million of whom were affected by this breach, launched an investigation on April 6.  Under Indonesian law, the government can assess fines against Facebook representatives personally of up to $870,000.  Singapore has opened an investigation as well, where it has already questioned Facebook executives located in their country.

The Philippines announced its investigation into Facebook on April 13.  The county was rated as the biggest user of social media several years running.  Research indicates that Filipinos spend almost four hours per day on various social media platforms.   This breach affected nearly 1.2 million Filipinos, and news reports indicate that Cambridge Analytica might have helped President Rodrigo Duterte in his successful 2016 campaign.  The event therefore has enormous significance to Filipinos.

On Friday, April 20th, Germany became the latest country to open an official investigation into the Facebook.  Germany’s data privacy regulator said fines could be levied against Facebook in the amount of 300,000 euros ($366,000).

Facebook had revenues of more than $40 billion last year, so the fines that each country might assess against the company seem relatively insignificant.  The investigations launched against Facebook can nevertheless have a big impact on the company and on the entire industry.  This event has garnered the attention of countries around the world, and it has already led to a greater awareness of privacy concerns that exist on social media platforms.

If you have any questions or would like more information, please contact Allen Sattler at [email protected].

 

Are Your Facebook Job Postings Violating the ADEA

Posted on: February 8th, 2018

By: Brenton S. Bean

So say putative class action plaintiffs in the Northern District of California.  See Communications Workers of America et al v. T-Mobile US, Inc., et al, Case No. 5:17-cv-7232 (N.D. Ca), filed Dec. 20, 2017.  Plaintiffs assert that Facebook has become the modern employment agency, providing not only a platform, but also data and strategies to help employers find candidates.  The lawsuit alleges that Facebook allows, and in some instances requires, a target audience be defined, which includes age restrictions.  In addition, Facebook uses its own massive database and algorithms to determine which users will see the ads, often on the basis of age.  This practice of “microtargeting” advertisements for employment discriminates against older workers, plaintiffs say.

Shortly before the lawsuit was filed, the New York Times ran an article regarding Facebook advertising and age discrimination.  Facebook and other social media sites have recently become more popular means by which employers advertise for job openings.  The Times story indicates many companies use Facebook’s ability to target its users by demographics, such as age, and therefore have discriminated against job applicants by restricting the scope of their Facebook ads to younger Facebook users.  Interestingly, that use of an age restriction is not always limited to cases where the advertiser requests such a restriction.  Facebook also takes the parameters identified by the employer and uses its own statistical methodologies to target the ad.  That means age restrictions may have been used in advertisements without the advertiser’s knowledge, according to the claim.

The scope of the case is potentially enormous.  First, the putative class size is immense.  The class as defined includes all Facebook users nationwide who are age 40 and older, who are interested in receiving employment-related advertisements or recruiting from employers via Facebook, and who were excluded from receiving an ad because of their age.  Second, the complaint names not only four defendant employers, but also a defendant class of employers and employment agencies.  Plaintiffs alleged there may be a thousand or more members of the defendant class, which could include every employer that has used age-limited Facebook ads.  In addition to the federal ADEA claim (which is expected to be amended once the charge process runs its course), plaintiffs have asserted claims under state law for discriminatory advertising and disparate impact recruiting and hiring.

While the named defendants are primarily large companies, the putative defendant class may also include many smaller employers.  Whether potentially implicated or not, companies are advised to review their job placement advertising.  At this juncture, it is too early to assess the class’s chances or the merits, either under the ADEA or the articulated state law claims.  We will monitor this matter closely.

If you have any questions or would like more information, please contact Brenton Bean at [email protected].

What Does Your Video Watching Behavior Say About You?

Posted on: December 18th, 2017

By: Jonathan Romvary

A federal court recently determined that the sharing of an individual’s device identification number and the videos watched does not violate federal privacy laws. In Eichenberger v. ESPN, Inc. , 2017 BL 427074, 9th Cir., No. 15-35449 (Nov. 29, 2017), the Ninth Circuit held that an individual’s Roku Inc. device serial number and a list of the ESPN videos watched does not qualify as personally identifiable information (PII) under the Video Privacy Protection Act (VPPA) such that ESPN’s sharing of the information with a third party did not violate VPPA protections.

What did the Court hold?

The three-judge panel held that while the plaintiff had standing under the Court’s Spokeo ruling, he could not continue with his suit because the shared information was not personally identifiable under the VPPA. The panel adopted and expanded the Third Circuit’s 2016 Viacom ruling that information can only be considered personally identifiable if an ordinary person could use it to pinpoint a specific individual’s video-watching behavior. Here, an individual would require the data to be combined with other personal information that ESPN never shared or possessed.

Why is this important?

The impact of the Ninth Circuit’s ruling may be far reaching. Nowadays, technology service providers and app developers are moving away from identifying their users by their names. They now utilize a variety of alphanumeric identifiers to identify their users, whether it is the unique identification number of the user’s device (see ESPN) or a unique user account identification number. Without more, the average user is unable to identify the person who watched. As one observer noted, this ruling may pave the way for companies such as Hulu, Netflix, Google and Facebook to optimize their user experience to provide more targeted marketing without violating federal statute.

In recent years, plaintiffs have filed a serious of class actions alleging violations of the VPPA against companies such as Fandango, Blockbuster, Overstock.com, Gamefly, Redbox, Best Buy, Netflix, and Hulu. The attractiveness of these suits is likely because plaintiffs can argue that violations are punishable by $2,500 in statutory damages per violation. However, as this court’s ruling indicates, every technological advancement away from the brick and mortar video rental stores away will make it harder for a plaintiff to sustain a successful claim.

However, the impact should also not be overstated. Despite this win for technology providers in the Ninth Circuit, there remains the matter of Yershov v. Gannett Satellite Information Network, Inc., No. 15-1719 (1st Cir. Apr. 29, 2016) which held that the disclosure of an individual’s viewing data along with the device’s unique identifier and device’s GPS information constituted PII such that the disclosure may violate the VPPA. The fact remains that there is still much uncertainty about the scope and viability of the VPPA.

If you have any questions or would like more information on this developing issue please contact Jonathan Romvary at [email protected].

Our Employee Said What Online? Public Entities and Employee Speech in the Digital Age

Posted on: September 22nd, 2016

By: Paul H. Derrick

Unlike their private-sector counterparts, employees of municipalities, counties, and other public entities have work-related free speech rights that enjoy varying levels of First Amendment protection.  Supreme Court law is clear on that broad point, although its contours are sometimes anything but clear.  In the 21st-century world of social media and other online forums, figuring out what is protected and what is not can be downright confounding.

Some public entities have simply thrown up their hands and lamented that there is nothing they can do when workers post damaging or embarrassing comments online.  Even taking First Amendment protections into account, however, all may not be lost.

The Supreme Court’s basic test for deciding when public employees’ speech is protected is seemingly straightforward.  When the speech is pursuant to an employee’s official duties, it is not constitutionally protected and the employee can be disciplined for saying the “wrong” thing.  When a public employee speaks in his/her capacity as a citizen on a matter of public concern, however, the speech generally is protected and cannot lead to discipline unless the public employer can show an overriding interest for taking such action.

Predictably, the various appellate courts around the country have not seen eye-to-eye on what that broad guidance means.  A number of them, however, use a three-part analysis.  The threshold inquiry is whether the public employee was speaking as a citizen on a matter of public concern or as an employee about something of merely personal interest.  Second, courts examine whether the employee’s interest in speaking outweighs the government’s interest in managing and maintaining an orderly work environment.  Just because speech involves a matter of public concern does not automatically give it absolute constitutional protection.  Finally, courts look for evidence that the employee’s speech was a substantial factor in the employer’s decision to terminate employment or otherwise punish the employee.

With the online and social media world now becoming almost ubiquitous, there are growing numbers of cases in which courts rely essentially on this same analysis in the context of adverse employment action taken because of an employee’s online speech.  In Duke v. Hamil (*WL 414222 (N.D.Ga. 2014)), for example, a police force demoted one of its officers for posting on his personal Facebook page an image of the Confederate flag, along with the phrase, “It’s time for the second revolution.”  The officer claimed that the posting was directed at “Washington politicians” and had nothing to do with his employer.  Although the officer quickly removed the image, another Facebook user submitted a screenshot of it to a local television station.  After the department began receiving complaints, the officer was demoted for publicly espousing his political views.

In considering the officer’s subsequent lawsuit, the court determined that the speech clearly was regarding a matter of public concern.  Nonetheless, three factors led it to rule in the department’s favor and dismiss the lawsuit.  First, the officer was a high-ranking official in the department; therefore, his posting had the potential to cause significant disruption both within the department and among the public.

Second, his personal Facebook page disseminated the message widely and publicly.  The officer’s speech received broad attention and implicated the public’s trust in law enforcement.  His actions reflected on the department’s reputation significantly and the posting appeared to advocate revolution, which could undermine confidence in the department because the officer was supposed to uphold law and order.

Third, while the speech was arguably political, its message could just as easily be interpreted as divisive, prejudicial and offensive, lacking substantive content that was important to the public’s interest in free speech.  Under the circumstances, the chief of police did not have to wait to see what happened as a result of the controversy before taking action to abate it.

Likewise, in Graziosi v. City of Greenville (5th Cir., No. 13-60900 (Jan. 9, 2015)), a police sergeant posted a series of scathing comments against her chief on Facebook after he refused to send a representative to the funeral of a police officer from another city killed in the line of duty.  Among other comments, she said that “[t]his is totally unacceptable” and asked the mayor “can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty?”  Later, Graziosi posted an additional comment that stated “If you don’t want to lead, can you just get the hell out of the way.”  Shortly thereafter, she was fired for violating the department’s rules of conduct.

The district court, later affirmed by the Fifth Circuit, dismissed the case, concluding that Graziosi did not speak on a matter of public concern and that, even if she did, the department’s interest outweighed her interest in speaking.  Even though the employee invoked the issue of public spending—whether the department failed to send a representative because of the cost—the employee’s primary complaint was that she was personally offended by what she perceived as a slight to a fallen officer.  The posts amounted to nothing more than an internal grievance because they constituted a “rant” attacking the police chief and culminating “with the demand that he ‘get the hell out of the way.’”  Thus, the speech was not entitled to First Amendment protection. The court also found that Graziosi’s minimal interest in speaking on matters of public concern was outweighed by the city’s substantial interest in maintaining discipline and close working relationships and preventing insubordination within the department.

These cases and others like them demonstrate that public employers do have at least a foothold in their efforts to take action against inappropriate postings by their employees.  Disruptive online speech can be the basis for disciplinary action when public employers are able to show that their interests in maintaining the public’s trust, an orderly workplace, and/or any number of other legitimate goals outweigh any First Amendment interest that an employee might otherwise have.