1. YouSued.com
Law & Social Data
By: David M. Adler
Leavens, Strand, Glover & Adler, LLC
203 North LaSalle Street, Suite 2550
Chicago, Illinois 60601
@adlerlaw

2. Use
of
Social

3. Overview
Many Businesses & Individuals Lack Resources
Inadequate understanding of legal and regulatory
requirements
Rights owners and Users can benefit
Ignorance = Risk
content removed
civil and criminal penalties
Lost time, money and business opportunities
Learn the “Rules of the Road” for creation,
commercialization and enforcement of the rights and

4. Copyright
Protects Content
Rights Acquisition
Infringement Issues
Digital Millennium Copyright Act
(DMCA)
Non-Preemptable Common Law
Claims
Hot news, Breach of Contract, Digital
Tresspass

5. Right of Publicity
Right to control and to choose whether and
how to use an individual’s identity for
commercial purposes
Personal Identity Attributes: (i) name, (ii)
signature, (iii) photograph, (iv) image, (v)
likeness, or (vi) voice
19 states with Rt. Of Publicity Statutes, 28
states recognize common law right
Defenses: identity not used (Question of fact),

6. Trademarks
Scope
Copycats: Brandjacking / Cybersquatting
Comparative Advertising
Liability For Trademark Infringement
Defenses
Product Placement

7. Defamation
Definition:
slander (statements) and libel (written, broadcast, or
published)
FALSE claim, either express or implied
Per Se (crime, disease, integrity, sexual conduct) & Per
Quod
Defamation In Cyberspace (Section 230)
Former Head / VP Indian Cricketing League fined US$140,000
for Libelous Tweet.
Selected Defenses:
IL: (i) fair report privilege, (ii) substantial truth, & (iii)

8. Content & Speech Regulation
Obscenity / Communications Decency Act - Obscene
Materials
Children: Children's Online Privacy Protection Act
(COPPA) & Children's Internet Protection Act (CIPA)
State Regulation
First Amendment
State Laws
NY bills S6779 A8688 - would ban “anonymous”
speech
AZ bill 2529 – criminalizes any speech that could be
construed as cyber-bullying
WA SB 6251 – criminalizes providing access to third
parties' “offensive” materials by online service

9. Marketing Issues
CAN-SPAM
Promotions
Sweepstakes / Contests
FTC
Endorsement / Testimonial Guidelines
Regulate Industries: FTC, FDA, FINRA, SEC,
NLRB
Platforms/Transmedia

10. Workplace Issues
The NLRB released 3 Reports, the latest May 30, 2012
An employer violates the Act if a rule “would reasonably tend
to chill employees in the exercise of their Section 7 rights.”
Practical Applications
No Policy. According to Grant Thornton, as of Nov. 2011, 79%
of companies surveyed did not have social media policies
Policy Unenforceable. In 2011, the NLRB had received 129
cases involving social media
Policy Unclear. Training employees is just the beginning; AU
telecom co. Telstra (40,000+ employees) mandates training
“3Rs” – responsibility, respect and representation
Policy Outdated. Oct. 2011 FTC settles with Frostwire,
developer of p2p file-sharing application over the default
privacy settings
Loss of Trade Secrets. Phonedog. Christou v. Betaport

11. Due Diligence
Contracts/Policies/Procedures
Social Media & Privacy
BYOD
Affiliates/Sponsors/Contractors
Clearance
Copyright/Trademark/Right of Publicity
Compliance
State & Federal Regulations

12. Thank You!
David M. Adler | Leavens, Strand, Glover & Adler, LLC
203 North LaSalle Street, Suite 2550
Chicago, Illinois 60601
Direct: (866) 734-2568
Fax: (312) 275-7534
www.ecommerceattorney.com
www.lsglegal.com
adlerlaw.wordpress.com
@adlerlaw

13. LAW &
SOCIAL
DATA

15. Experience won’t just be about the tool you
build, but it will include how you manage
sensitive data and how you respect users.

16. This talk is not about Facebook.
This talk is about you.

17. uncharted legal territory
What do we mean by “privacy?”

19. Distinguishing Fourth Amendment from
privacy in the civil sense.

20. Electronic Communications Privacy Act

21. Personally Identifiable Information (Pii)

22. “Personally identifiable information” is information that
identifies a particular person. “Pii” includes:
• Full name;
• National identification number;
• IP address;
• Vehicle registration plate number;
• Driver’s license number;
• Face;
• Fingerprints;
• Handwriting;
• Credit card numbers;
• Digital identity;
• Date of birth;
• Birthplace; and
• Genetic information.

23. federal movement on privacy
I just want to build cool stuff.
Why should I care?

25. Problem #1: The laws around data reside in
industry silos.

27. Few pieces of key legislation:
Do Not Track Act
Commercial Privacy Bill of Rights Act of 2011
Personal Data Privacy and Security Act
Secure and Fortify Electronics Data Act (SAFE)
Data Security and Breach Notification Act

28. Problem #2: They aren’t getting it in DC.

29. Silicon Valley, Alley, Beach > DC

30. Problem #3: This isn’t going away.

31. FTC Action
Opting Out = ScanScout
Children’s Privacy = SkidKids

32. California
Privacy Policy Required

33. oh crap.
What Developers Can Do

35. What people care about:
Data control
Data minimization
Data portability
Data withdrawal

36. Here are a few places to start:

37. Conducting an assessment on privacy and
data security.

38. Audit:

39. type
Audit:

40. type
amount
Audit:

41. type
amount
Audit:
use

42. type
amount
Audit:
use
intake

43. Architectural solutions to privacy. Build with
privacy in mind.

44. Policy solutions to privacy.

45. Privacy policies and practices in their
current incarnation are not working.

48. kidz.
yes, different rules apply.

50. Minors
Children’s Online Privacy Protection Act

51. Children’s Online Privacy Protection Act
Requires websites to get parental consent
before collecting or sharing info for children
under 13
Enforced by the Federal Trade Commission
Applies to commercial websites and other
online services
If you know you have minors on your site, close
the accounts

52. Children’s Online Privacy Protection Act
To comply:
Post a privacy policy/advise whenever
personal information collected
Parental notice, consent, access to
information
Can’t condition participation on providing
more info
Confidentiality & security of information

53. keeping all things “cyber” secure.
super duper uncharted legal territory.

55. Current Legal Regime Applied:
Computer Fraud and Abuse Act
Economic Espionage Act
State Level Regulation

56. Hillz? Send those files to China?
Text
Shit.

57. We just scratched the surface.

58. Lawyer
Christina Gagnier
@gagnier
gagnier@gamallp.co
m

59. ?

60. LAW &
SOCIAL
DATA