Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

Social Links: Going Back to Cali

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The latest issue of our Socially Aware newsletter is now available <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt7c89ce38086b468b/62730e2f7198441d81b3a28b/170209-socially-aware.pdf" target="_blank" rel="noopener">here</a>.In this edition,we examine a spate of court decisions that appear to rein in the historically broad scope of the Communications Decency Act’s Section 230 safe harbor for website operators; we outline ten steps companies can take to be better prepared for a security breach incident; we describe the implications of the Second Circuit’s recent opinion in Microsoft v. United States regarding the U.S. government’s efforts to require Microsoft to produce email messages stored outside the country; we explore the EU’s draft regulation prohibiting geo-blocking; and we take a look at UK Consumer Protection regulators’ efforts to combat undisclosed endorsements on social media.All this—plus an infographic highlighting the most popular social-media-post topics in 2016.Read our <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt7c89ce38086b468b/62730e2f7198441d81b3a28b/170209-socially-aware.pdf" target="_blank" rel="noopener">newsletter</a>.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

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Now Available: The February Issue of Our Socially Aware Newsletter

Now Available: The February Issue of Our Socially Aware Newsletter

The latest issue of our Socially Aware newsletter is now available here. In this edition,we examine a spate of court decisions that appear to rein in the histor

Social media is transforming the way companies interact with consumers. Learn how to make the most of these online opportunities while minimizing your company’s risk at Practicing Law Institute’s (PLI) 2017 Social Media conference, to be held in San Francisco and webcasted on Thursday, February 2nd.  The conference will be chaired by Socially Aware co-editor John Delaney, and our other co-editor, <a href="https://www.mofo.com/people/aaron-rubin.html" target="_blank" rel="noopener">Aaron Rubin</a>, will also be presenting at the event.Topics to be addressed will include:<ul><li>Key developments shaping social media law</li><li>Emerging best practices for staying out of trouble</li><li>Risk mitigation strategies regarding user-generated content and online marketing</li><li>Legal considerations regarding use of personal devices and other workplace issues</li></ul>Other special features of the conference include: <ul><li>Regulators panel: guidance on enforcement priorities for social media and mobile apps</li><li>In-house panel: practical tips for handling real-world issues</li><li>Potential ethical issues relating to the use of social media by attorneys</li></ul>Don’t miss this opportunity to get up-to-date information on the fast-breaking developments in the critical area of social media and mobile apps so that you can most effectively meet the needs of your clients.For more information or to register, please visit PLI’s website <a href="http://www.pli.edu/Content/Seminar/Social_Media_2017_Addressing_Corporate_Risks/_/N-4kZ1z10oyn?Ns=sort_date%7c0&ID=288996" target="_blank" rel="noopener">here</a>.  We hope to see you there!

Social Media 2017: Addressing Corporate Risks

Social media is transforming the way companies interact with consumers. Learn how to make the most of these online opportunities while minimizing your company’s

Social Media 2017: Addressing Corporate Risks

The beginning of a new year is a time for resolutions and predictions. We won’t bother Socially Aware readers with our resolutions for 2017, but we thought that we would share some predictions for the new year from our editors and contributors. As our predictions below indicate, 2017 promises to be an eventful year for social media and other emerging technologies. Here we go:From John Delaney, Co-Founder and Co-Editor, Socially Aware, and Partner at Morrison & Foerster:As we enter 2017, one of the greatest question marks for the social media and content marketing industries is what impact will Donald Trump have on the legal landscape. He’s been dubbed the country’s first social media president, and there is no doubt that his use of social media platforms such as Twitter and Facebook played a key role in his upset election victory. At the same time, he’s had an often antagonistic relationship with Silicon Valley, and one can imagine tech giants such as Google and Facebook having a far less prominent voice within the Trump administration than was the case for the Obama administration. And although Trump’s promised focus on reducing business regulations may benefit the U.S. technology companies, his apparent skepticism toward globalism and free trade could prove a challenge to the country’s social media industry, perhaps the most global of all U.S. industries.My other prediction for the coming year is that we’re going to see a number of disruptive new technologies emerging from the hype phase to having a real impact on businesses and consumers—perhaps more likely with respect to the latter than the former, at least initially. For example, blockchain technology generated a big buzz in 2016, but look for companies to actually begin embracing and implementing this technology in a B2B context in the never-ending drive to reduce transaction fees. By eliminating the need for trusted middlemen, the transitioning of traditional payment and recordation platforms to blockchain-based platforms holds the promise of generating significant cost savings for companies. We’re also going to see the pace of disruption accelerate as each of these new technologies—such as artificial intelligence, big data analytics, cloud computing, blockchain, the Internet of Things and so forth—combine and mutate in expected and unexpected ways. From Aaron Rubin, Co-Editor, Socially Aware, and Partner at Morrison & Foerster:Section 230 of the federal Communications Decency Act provides immunity to website operators for liability arising from user-generated content and has been hailed as <a href="http://www.theatlantic.com/business/archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/" target="_blank" rel="noopener">the law that gave us the modern Internet</a>. In the social media space in particular, Section 230 has helped fuel the remarkable success of companies such as Facebook, Twitter and YouTube by providing broad protection against claims arising from content posted by these platforms’ users. But in 2016, we saw <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">a string of court decisions</a> reining in the historically broad scope of Section 230. To be fair, 2016 also saw <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">a few victories</a> for website operators asserting Section 230 defenses, but with the increased media focus on “fake news” and online trolling, my prediction is that the trend towards narrowing the scope of Section 230 will continue in 2017. From Christine Lyon, Privacy Desk, Socially Aware, and Partner at Morrison & Foerster:In 2017 we will watch courts, legislators and the tech industry grapple with the privacy-related implications of the Internet of Things. Our homes, cars and workplaces are filling with connected devices designed cater to our personalized needs. They respond to our instructions, whether delivered through a mobile app or a spoken command, and they collect data about our activities in order to better anticipate our needs. All of this data collection creates a digital trail of our lives, which will become richer and more detailed as multiple sources of data are combined. Big data analytics offers seemingly endless opportunities to use and commercialize this data in new ways. Yet unanticipated uses and disclosures of user data may compromise consumer privacy and even undermine consumer trust. We can expect to see expanding definitions of what types of data are considered personal information, legal battles over when and how law enforcement agencies can access user data and industry self-regulatory initiatives to try to strike an appropriate balance between privacy and innovation. From Julie O’Neill, Online Marketing Desk, Socially Aware, and Partner at Morrison & Foerster:One of the biggest privacy developments of 2017 will be the Eleventh Circuit’s decision in the FTC’s long-running battle with LabMD. In July 2016, the Commission overturned the decision of the FTC’s own administrative law judge, holding that LabMD’s failure to use basic security measures led to the unauthorized disclosure of sensitive medical data and was thus “unfair,” in violation of Section 5 of the FTC Act. According to the Commission, the data security failure was unfair because it caused, or was likely to cause, substantial consumer injury. The Commissioners reached this decision without evidence of any actual injury to consumers. LabMD promptly appealed.The Eleventh Circuit’s decision will have ramifications for how the FTC wields its unfairness authority. A decision against the FTC would curtail its ability to bring enforcement on an unfairness theory where there is no actual harm to consumers. Couple that with the fact that President-elect Trump’s appointments to fill the Commission’s two vacancies will almost surely not be aggressive enforcers, and we will see less enforcement from the FTC—not just with respect to privacy and data security matters, but with respect to consumer protection issues more generally. From <a href="https://www.mofo.com/people/j-lawrence.html" target="_blank" rel="noopener">J. Alexander Lawrence</a>, Litigation Desk, Socially Aware, and Partner at Morrison & Foerster:2017 may bring greater clarity to the Digital Millennium Copyright Act (DMCA) Section 512 safe harbors’ “repeat infringer policy” requirement under U.S. copyright law. In late 2016, the Second Circuit, in the MP3Tunes decision, took a broad view of what constitutes a repeat infringer under the DMCA. This is important because a service provider’s failure to terminate repeat infringers can result in loss of safe harbor protections from copyright damages. A further appeal to the Supreme Court in that case is possible. The Fourth Circuit will be considering the issue of what constitutes a repeat infringer in a dispute between BMG and Cox and will likely issue a decision sometime in 2017. Companies that rely on the DMCA safe harbor will be paying close attention to these developments. From Michael Jacobs, Co-Chair, Intellectual Property Group, Morrison & Foerster:My prediction for 2017 is that the patent litigation world will settle down a bit—now that we all have had time to adjust to the new ground rules. Section 101 decisions against patentees will be fewer. IPR institution and invalidation rates will decline. Damages expert testimony will more often survive judicial scrutiny. Injunctions will be sought in the right cases and granted. The only major change on the horizon is venue (and that will be big)—likely as the result of a Supreme Court decision in TC Heartland. From Paul Goldstein, Stella W. and Ira S. Lillick Professor of Law, Stanford Law School, and Of Counsel to Morrison & Foerster:The trends toward nationalism and protectionism that emerged around the globe in 2016 are unlikely to produce corresponding fractures in international copyright norms in 2017 or after. From the first bilateral copyright treaty in 1854, on through the Berne Convention to the present, it has not been the nation-state but, rather, the alignment of industry forces that has controlled the outcome of debate. In contests over the scope of the public performance right, an American music publisher has far more in common with a British music publisher than it does with an American Internet company, and will act accordingly in advancing its interests worldwide. States may sit at the negotiating table and sign the resulting agreements, but they do so principally as brokers and agents of their preferred domestic industries. (It will for this reason be important to watch whether Silicon Valley continues to enjoy the preferred status it received from the Obama administration.) From Obrea Poindexter, Co-Chair, FinTech Group, Morrison & Foerster:We expect 2017 to bring significant legal developments impacting the FinTech industry. With respect to lending, we expect to see the resolution of important cases, including the Madden case, which could impact marketplace lenders and traditional lenders alike. We also expect significant regulatory developments, including with respect to the OCC’s proposal for special purpose FinTech charter, which has the potential to facilitate regulatory compliance for start-ups launching innovative financial products and services. Of course, the changing political climate has the potential to dramatically change the regulatory outlook early in 2017, including for the FinTech industry.  From Stephanie Sharron, Partner, Technology Transactions Group, Morrison & Foerster:In 2017 companies will continue to explore ways to provide deeper interoperability and more security for the Internet of Things (IoT). In addition, data governance both from a rights and a regulatory perspective will take on increasing importance as companies sort out how they can best leverage and monetize the data collected from IoT products and services. Companies across industries will look for ways to transform their traditional businesses through adoption of IoT and big data applications that leverage the IoT’s power.In the FinTech area, I predict continued interest and investment as companies look for new monetization models and ways to cut costs. Banks are likely to continue to explore whether and how they can reduce costs through implementation of new technologies such as blockchain. As with the IoT, data governance and regulatory issues will continue to be a challenge for early adopters of cutting edge FinTech technologies and business models. From Katie Thomson, Chair, Transportation Group, Morrison & FoersterOn the infrastructure front, there is a bipartisan consensus that a safe, reliable and sustainable transportation system is critical to the economic prosperity of the United States and the well-being of everyone who lives here. There is also bipartisan recognition that our infrastructure is aging, public investment is shrinking and congestion on the roads and rails and in the air continues to increase. But over the past two decades, members of Congress—on both sides of the aisle—have lacked the political courage to develop and pass a long-term, adequate and viable funding solution that meets the needs of the transportation system today and into the future. President-elect Trump has pledged to invest approximately one trillion dollars in infrastructure support over the course of the next decade. That is a good start, but I predict that Congress will not take any meaningful action to resolve the long-standing infrastructure deficit in 2017. Instead, federal, state and local governments, along with private investors, will have to continue to find creative solutions to leverage scarce public funds and bring private funds to bear to support investments in transportation infrastructure.On the technology front, automated vehicles, drones, intelligent transportation systems, and performance-based design standards hold tremendous promise to enhance safety, efficiency and mobility in all modes of transportation. The federal government has an important role to play in eliminating regulatory barriers while ensuring the safety and security of these new technologies. Federal resources, however, are limited. To ensure that innovation continues and that we reap the benefits of these emerging technologies in real time, I predict that interested stakeholders will have to join forces to push the federal government to act responsibly and in a timely manner. The “push” may involve, among other creative measures, offering consensus recommendations to the government with respect to key issues such as safety and cybersecurity standards. From Joshua Ashley Klayman, Chair, Blockchain + Smart Contracts Group, Morrison & Foerster:In 2016 the potential for blockchain and smart contracts technologies to disrupt and transform entire industries captured the attention of the world’s financial markets and financial services industries.My prediction for 2017 is that the attention and excitement about blockchain will continue to grow and that the governments and laws of the United States and other nations will continue to adapt to embrace—or at least acknowledge—blockchain and smart contracts technologies. At the same time, I predict that we will see many failures with respect to start-ups and investments, as well as well-hyped product and service offerings that stall at or prior to the proof of concept stage. That is natural and to be expected as distributed ledger technology grows and develops and as individuals and companies work to identify and refine use cases that will benefit most from blockchain and smart contracts (vs. those for which traditional spreadsheets or databases will suffice). Finally, I predict that in 2017 we will see the launch of more sophisticated smart contracts (i.e., beyond buying and selling digital currency) that are market-ready and not merely proof of concepts or demos, including in the finance space. From Kristina Ehle, Partner, and Jannis Werner, Associate, in Morrison & Foerster’s Berlin OfficeIn Europe, 2017 begins amidst fears of so-called “fake news” distributed through social media, the implications for democratic processes and discussions about the right approach to tackle this issue going forward. EU Commission president Jean-Claude Juncker recently made it known that he expects companies like Facebook and Google to combat fake news on their platforms, and that the Commission will be watching. Meanwhile, discussions of fake news in Europe’s largest economy, Germany, may progress past such posturing and lead to concrete legal measures, with calls for regulation of social media and criminal sanctions for offending users being made by large parts of the political spectrum, and only few voices warning of the chilling effects of such measures on free speech. Considering how seamlessly these discussions seem to follow one of Germany’s best-known social media controversies of 2016—the perceived resurgence of hate speech in the times of migration crises—it’s safe to expect that U.S.-based social media platforms will remain a favorite target of both political rhetoric and regulatory ambition. This year, of course, German leadership has plenty of motivation for its preoccupation with fake news and the political effects of social media in general: 2017 will be an election year in Germany and France. From Susan McLean, Europe Desk, Socially Aware, and Of Counsel at Morrison & Foerster’s London Office:The implications of the decision to leave the European Union will continue to loom large for the UK tech sector during 2017. Subject to court cases impacting the timetable announced by the UK Prime Minister, the official Article 50 declaration is expected to be made by the end of March 2017. However, until we know more about the shape of the UK’s relationship with the EU going forward, there will remain uncertainty as to what impact Brexit will have on existing and planned UK law (much of which is derived from EU legislation). In the meantime, I anticipate that the UK tech sector will continue to highlight to the UK government their key priorities for any Brexit deal—including continued access to recruitment and investment—to ensure that the UK tech sector continues to flourish post-Brexit.

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2017: Predictions From Socially Aware’s Editors and Contributors

2017: Predictions From Socially Aware’s Editors and Contributors

The beginning of a new year is a time for resolutions and predictions. We won’t bother Socially Aware readers with our resolutions for 2017, but we thought that

As part of the European Commission’s Digital Single Market initiative, the European Commission has published a draft Regulation aimed at preventing traders from discriminating against customers located in other EU Member States by denying those customers access to e-commerce sites, or by redirecting those customers to websites that offer inferior goods or sales conditions—a practice known as geo-blocking. The proposed new rules will benefit both consumers and businesses that purchase goods or services within the EU (excluding resellers).The European Commission believes that geo-blocking and discriminatory practices undermine online shopping and cross-border sales within the EU.The Regulation, which must still undergo review by the European Parliament and the Council of the EU, may change and is expected to be in force in 2017 (except the ban on discriminating against customers of electronically supplied services, which is expected to be effective beginning July 2018). When it is adopted, the Regulation will automatically take effect in all Member States without each Member State having to implement it into national law.The Traders to Whom the Regulation Applies The Regulation will apply to all traders, (including small- and medium-sized enterprises and micro-enterprises) operating in the EU. Small businesses that fall under a national VAT threshold, however, will be exempt from certain provisions. The Regulation will also apply to traders  established outside the EU to the extent that they sell or intend to sell goods or services to customers in the EU.  The Prohibition Against Discrimination Traders must not discriminate against customers on the basis of their nationality, place of residence or place of establishment when selling (or seeking to sell) goods or services:<ul><li>in a Member State other than the Member State in which the customer resides or has its establishment;</li></ul><ul><li>in the same Member State, but the customer is a national of another Member State; or</li></ul><ul><li>in a Member State in which the customer is temporarily located without residing in that Member State or having a place of establishment there.</li></ul>The Prohibition Against Blocking A trader operating an online interface (such as a website or app) will not be permitted, through technology measures or otherwise, to block or limit customers’ access for reasons related to the customer’s nationality, or place of residence or establishment. In addition, a trader will not be permitted to redirect a customer from one website to an alternative website without the customer’s consent. And, if a customer consents to the redirection, the customer must still be able to access the original website.The Prohibition Against Different Terms, Goods or Services A trader may not apply different terms and conditions to a customer based on that customer’s nationality, residence or place of establishment. This ban applies to:<ul><li>sales of goods where the trader is based in a different Member State than the customer;</li></ul><ul><li>all electronically supplied services (except services that involve providing access to copyright-protected content, as discussed below), e.g., cloud services and web hosting; and</li></ul><ul><li>offline services provided at the trader’s premises or in a location where the trader operates, where such site is in a different Member State to where the customer is a national, is resident or is established.</li></ul>Note that the Regulation does not require traders to deliver goods cross-border, however. As long as it requires the same thing of all of its customers, a merchant may require a foreign customer to pick up goods in the Member State where the merchant is located, or in another Member State to which the merchant delivers.The Prohibition Against Different Payment Conditions A trader may not apply different payment conditions to sales of goods or services within the EU, subject to certain criteria. However, a trader will still be free to decide which payment means it accepts from customers. And the Regulation does not address pricing, so traders will still be free to set prices in a non-discriminatory manner.Exceptions To the relief of content providers across the EU, the Regulation does not apply to copyrighted content. This is a departure from the Commission’s original plans, and means that digital content providers (e.g., providers of audio-visual media, e-books, gaming apps and software) can continue to licence their content on a territorial basis (subject to portability obligations under the draft Regulation on cross-border portability and obligations under the proposed amendments to the Audiovisual Media Service Directive).The Regulation also does not apply to financial services, transportation services, health care services or gambling.There are also specific exceptions to the discrimination obligations, where required, to comply with applicable EU or Member State laws (e.g., applicable laws regarding the protection of children), but any such restrictions must be “precisely justified.”The Impact of Brexit The UK voted to leave the EU on 23 June 2016. However, until the UK government formally provides an Article 50 notice, the UK remains part of the EU and subject to EU law and regulation. Accordingly, if this Regulation comes into force in 2017, it will apply to the UK because it is directly applicable in all EU Member States. Whether or not the law will continue to apply post-Brexit will depend on the Brexit model that the UK government adopts, which is not yet clear. It seems likely that this sort of law is one which the UK government would positively want to encourage—or at least the UK government would need to find some way to agree mutual recognition between the EU and the UK, because if the law doesn’t apply to the UK, then it would mean that EU businesses could discriminate against UK customers.What Traders Should Do NowTraders that will be affected by the proposed new law should start reviewing the technical features of their platforms, as well as their terms and conditions, including their payment terms, to identify whether they discriminate against customers based on their nationality, place of residence or place of establishment. Traders should also consider what changes their platforms and terms will have to undergo to ensure compliance with the new law so that, when the proposed law is adopted, they will have started to undertake the necessary preparations.

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European Commission Publishes Draft Regulation Prohibiting Geo-Blocking by Online Traders and Content Publishers

European Commission Publishes Draft Regulation Prohibiting Geo-Blocking by Online Traders and Content Publishers

As part of the European Commission’s Digital Single Market initiative, the European Commission has published a draft Regulation aimed at preventing traders from

Facebook introduced technology that disables ad blockers used by people who visit the platform via desktop computers, but <a href="http://www.vanityfair.com/news/2016/08/facebook-adblock-plus-work-around" target="_blank" rel="noopener">Adblock Plus has already foiled the platform’s efforts</a>, at least for now.A look at Twitter’s 10-year <a href="https://www.buzzfeed.com/charliewarzel/a-honeypot-for-assholes-inside-twitters-10-year-failure-to-s?utm_term=.fx6KOMDxrL#.ytjwx67GJ4" target="_blank" rel="noopener">failure to stop harassment</a>.Are mobile apps killing the web?<a href="http://www.mediapost.com/publications/article/282274/linkedin-sues-to-shut-down-scrapers.html" target="_blank" rel="noopener">LinkedIn sues</a> to shut down “scrapers.”The FTC is planning to <a href="http://adage.com/article/digital/ftc-cracking-social-influencers-labeling-promotions/305345/" target="_blank" rel="noopener">police social media influencers’ paid endorsements more strictly</a>; hashtags like #ad may not be sufficient to avoid FTC scrutiny. <a href="http://www.ft.com/cms/s/0/d200d8c2-5fef-11e6-b38c-7b39cbb1138a.html" target="_blank" rel="noopener">Officials in the UK</a> are cracking down on paid posts, too.Dan Rather, <a href="http://www.theatlantic.com/technology/archive/2016/08/dan-rather-reporting-for-facebook/495431/" target="_blank" rel="noopener">Facebook anchorman</a>.The U.S. Olympic Committee sent letters to non-sponsoring companies <a href="http://www.espn.com/olympics/story/_/id/17120510/united-states-olympic-committee-battle-athletes-companies-sponsor-not-olympics" target="_blank" rel="noopener">warning them against posting about the games</a> on their corporate social media accounts.How IHOP keeps winning the love & affection of its 3.5 million Facebook fans.A Canadian woman whose home was designated a Pokémon Go “stop” is <a href="http://www.cbsnews.com/news/pokemon-go-canada-class-action-lawsuit-gym-home-torrington-alberta/" target="_blank" rel="noopener">suing the app’s creators</a> for trespass and nuisance. We <a href="http://www.sociallyawareblog.com/2016/07/21/pokemon/" target="_blank" rel="noopener">saw that</a> coming.There’s a website dedicated to helping Snapchat users fool their followers into thinking they’re out on the town.Facebook has been wooing premium content owners, but <a href="http://www.wsj.com/articles/tv-companies-resist-facebook-video-deals-1470823203" target="_blank" rel="noopener">TV companies are reportedly resisting</a>.PETA got a <a href="https://www.techdirt.com/articles/20160805/16593335170/primatologist-tells-court-that-macaque-monkeys-are-like-super-smart-so-they-should-totally-get-copyrights.shtml" target="_blank" rel="noopener">primatologist to submit an amicus curiae brief</a> supporting its suit alleging a monkey who took a selfie is entitled to a copyright for the image.

Social Links: Facebook’s anti-ad-blocking software; LinkedIn’s “scraper” lawsuit; FTC’s upcoming crackdown on social influencers

Facebook introduced technology that disables ad blockers used by people who visit the platform via desktop computers, but Adblock Plus has already foiled the pl

Social Links: Facebook’s anti-ad-blocking software; LinkedIn’s “scraper” lawsuit; FTC’s upcoming crackdown on social influencers

In the recently decided <a href="https://caselaw.findlaw.com/ca-court-of-appeal/1736333.html" target="_blank" rel="noopener">People ex rel. Harris v. Delta Air Lines</a>, California’s Court of Appeal unanimously affirmed the dismissal of the State of California’s complaint against Delta Air Lines, Inc., which alleged that the company’s Fly Delta mobile application violated California’s privacy laws. The Court of Appeal held that the lawsuit was expressly preempted by the Airline Deregulation Act of 1978 (ADA). The holding is in line with other cases broadly applying the ADA’s preemption provision and limits the extent to which airlines may be required to comply with state privacy laws.<h5>California’s Lawsuit</h5>The California Attorney General (AG) brought the lawsuit against Delta to enforce California’s Online Privacy Protection Act of 2003 (CalOPPA), In pertinent part, CalOPPA requires an operator of a commercial website or online service to draft and post online a privacy policy informing consumers in California “of the Web site’s or online service’s information practices with regard to the consumers’ personally identifiable information[.]” CalOPPA also places certain other requirements on operators of websites or online services.The AG argued that Delta violated CalOPPA in connection with the Fly Delta mobile app, which can be downloaded from the Internet and used on smart phones and other mobile devices (and therefore arguably makes Delta “an operator of online services” subject to CalOPPA). Users can do a variety of things on the app, including checking in for flights, viewing reservations for air travel, pricing and buying tickets, paying for and tracking checked baggage, and accessing their frequent flyer accounts. The app also purportedly allows users to send and receive information over the Internet, and collects certain personally identifiable information (PII) about individuals residing in California.The AG alleged that Delta did not conspicuously post a privacy policy in connection with the app as required by CalOPPA. According to the complaint, app users allegedly were not informed that their PII was collected, how Delta used such information, or with whom that information was shared, disclosed, or sold. The AG first notified Delta that the app did not comply with CalOPPA in an October 2012 letter. Less than two months later, the AG filed its complaint alleging that the app “does not have a privacy policy conspicuously posted, i.e., reasonably accessible to consumers within the [mobile application.]” The AG’s complaint contained a single cause of action under California’s Business and Professions Code section 17200 (the “unfair competition law” or UCL), claiming that Delta’s CalOPPA violations were “unlawful, unfair, or fraudulent business acts and practices” under the UCL.Delta responded with a demurrer in which it argued that the ADA expressly preempted the AG’s lawsuit. The ADA is a 1978 federal law intended to remove government control over fares, routes, and new carriers entering the market in the commercial aviation field. The ADA contains an <a href="https://www.law.cornell.edu/uscode/text/49/41713" target="_blank" rel="noopener">express preemption provision</a>  that prohibits the states from enacting or enforcing any law, regulation, or provision “related to a price, route, or service of an air carrier . . . ” The trial court agreed with Delta, sustaining the demurrer without leave to amend and dismissing the complaint with prejudice. The AG appealed.<h5>The Court of Appeal’s Opinion</h5>The Court of Appeal affirmed, holding that the ADA preempted California’s UCL claim against Delta. The court began by reiterating the “‘two cornerstones’ of federal preemption analysis”: First, that congressional intent is the focus of the analysis, and second, that there is a presumption against preemption.Supreme Court PrecedentApplying those cornerstone principles here, the court was guided by three cases in which the U.S. Supreme Court addressed the reach of the ADA’s preemption provision: <a href="https://www.law.cornell.edu/supct/html/90-1604.ZS.html" target="_blank" rel="noopener">Morales v. Trans World Airlines, Inc. (1992)</a>, <a href="https://www.law.cornell.edu/supct/html/93-1286.ZO.html" target="_blank" rel="noopener">American Airlines, Inc. v. Wolens (1995)</a>, and <a href="http://www.supremecourt.gov/opinions/13pdf/12-462_p8k0.pdf" target="_blank" rel="noopener">Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014)</a>.In Morales, the Supreme Court held that the ADA preempted Travel Industry Enforcement Guidelines composed by the National Association of Attorneys General (NAAG). The NAAG guidelines purported to govern the content and format of airline fare advertising and were designed to stop allegedly deceptive airline advertisements. The Supreme Court interpreted the “relating to” language in the ADA preemption clause broadly, and held that the ADA preempted the NAAG guidelines because they were “related to” a price, route, or service of an air carrier.The Court similarly found that the ADA preempted the plaintiffs’ claims in Wolens. In Wolens, the plaintiffs alleged American Airlines’ retroactive modification of its frequent flyer program violated Illinois’ Consumer Fraud and Deceptive Business Practices Act. The Supreme Court held that the claims related to American Airlines’ “‘[prices],’ i.e. American’s charges in the form of mileage credits for free tickets and upgrades, and . . . ‘services,’ i.e. access to flights and class‑of-service upgrades unlimited by retrospectively applied capacity controls and blackout dates.” Because they related to prices and services, the claims were preempted by the ADA.In Ginsberg, the Supreme Court reaffirmed its broad interpretation of the ADA’s preemption provision. The Court concluded that the ADA preempted the plaintiffs’ claims for breach of the implied covenant of good faith and fair dealing stemming from allegations that the airline terminated their memberships to its frequent flyer program. The Court found that airline’s frequent flyer program was “related to” the airline’s prices and services, and thus that the claims were preempted by the ADA.ADA Preemption, CalOPPA, and the Fly Delta AppTurning to California’s claim here, the court began by addressing a few issues that had been resolved by Morales and Wolens.First, the court noted that, in assessing whether the ADA preempts the AG’s UCL action, the court would examine the underlying state law predicate—i.e., CalOPPA.Second, the court explained that, in analyzing the preemption issue, it was not required to apply the presumption against preemption because the field governed by the ADA—air transportation—has long been regulated at the federal level.Third, the court rejected the AG’s argument that the complaint did not “relate to” Delta’s service. The app was designed to facilitate access to the airline’s services, and the AG was trying to compel Delta to maintain the app in compliance with CalOPPA. Thus, the lawsuit “related to” Delta’s services. Notably, the court did not decide whether the app itself was a “service” within the meaning of the ADA.The court then concluded that the ADA preempts California’s UCL/CalOPPA claim as applied to Fly Delta. The court explained that CalOPPA is not a mere “disclosure regimen” within which operators of online services may act with broad discretion. Rather, CalOPPA is similar to the consumer protection legislation at issue in Morales and Wolens, and has the potential to intrusively regulate airlines.Moreover, as in Morales, the obligations imposed by CalOPPA would significantly affect the airline’s ability to market its product through the app, and would therefore have a meaningful impact on the fares Delta charges. As the court explained, quoting Morales: “If each AG were to require Delta to comply with its own version of CalOPPA, it would force Delta to design different mobile applications to meet the requirements of each state. And, indeed, enforcement of the CalOPPA’s privacy policy requirements might well make it impossible for an airline to use a mobile application as a marketing mechanism at all.”Finally, the court rejected the AG’s argument that CalOPPA would have only “a peripheral effect on ticket prices, routes, or airline services.” CalOPPA would instead “require Delta to meet state standards regarding privacy policy requirements in place of the market forces currently dictating Delta’s selection and design of” Fly Delta.Because the ADA preempted California’s UCL claim for violation of CalOPPA, the court upheld the dismissal of the complaint. And it did so without leave to amend, finding that there was no reasonable possibility that the AG could amend to avoid ADA preemption.<h5>What This Means</h5>Delta reinforces the broad scope of the ADA’s preemption provision. As the case makes clear, airlines have a strong argument that state laws like CalOPPA, which apply across industries and seem to have only a remote effect on the airline’s prices, routes, or services, simply cannot be applied to them. But this does not mean that the airlines may operate unchecked in areas governed by CalOPPA and other preempted laws. As the Delta court noted, quoting Wolens, Morales, and Ginsberg: “[T]he DOT retains authority to investigate unfair and deceptive practices and unfair methods of competition by airlines, and may order an airline to cease and desist from such practices or methods of competition.” The court further stated that DOT appears to have “taken action” related to the collection of PII by air carriers, and privacy policies for the sharing and storage of that PII. To date, however, the DOT has issued no regulations governing the form and placement of privacy policies related to an airline’s mobile app. And until the DOT does, state privacy laws cannot fill the gap. *      *      *For more information regarding this subject, please see our November 2012 post <a href="https://www.sociallyawareblog.com/2012/11/12/california-a-g-makes-good-on-promise-to-pursue-apps-that-dont-comply-with-the-states-privacy-policy-law/" target="_blank" rel="noopener">California A.G. Makes Good on Promise to Pursue Apps That Don’t Comply With the State’s Privacy Policy Law</a>.

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California Court of Appeal Rules That State Attorney General’s Privacy Suit Over Fly Delta Mobile App Is Preempted

California Court of Appeal Rules That State Attorney General’s Privacy Suit Over Fly Delta Mobile App Is Preempted

In the recently decided People ex rel. Harris v. Delta Air Lines, California’s Court of Appeal unanimously affirmed the dismissal of the State of California’s c

Social media has upended a number of industries. Is <a href="http://www.marketwatch.com/story/social-medias-next-disruption-the-investment-industry-2016-06-09" target="_blank" rel="noopener">Wall Street next</a>?Facebook is getting into the video game live-streaming business.Steven Avery’s defense attorney is <a href="http://www.postcrescent.com/story/news/2016/06/07/avery-attorneys-social-media-strategy-questioned/85233596/" target="_blank" rel="noopener">keeping her 163,000 Twitter followers abreast of her ongoing defense work</a> on behalf of the “Making a Murderer” documentary subject, and some lawyers think it’s a bad idea.Five quick and easy ways to <a href="https://www.entrepreneur.com/article/276564" target="_blank" rel="noopener">double your social media following</a>.Fake Internet traffic schemes will become the second-largest market for criminal organizations behind cocaine and opiate trafficking.<a href="http://adexchanger.com/featured-2/bots-and-fraudsters-are-feasting-on-political-ad-dollars/" target="_blank" rel="noopener">Bots and fraudsters</a> are feasting on political ad dollars.People are spending <a href="http://www.cnbc.com/2016/06/06/people-are-spending-much-less-time-on-social-media-apps-said-report.html" target="_blank" rel="noopener">less time on social media apps</a> these days? With <a href="http://variety.com/2016/digital/news/snapchat-twitter-pinterest-us-users-2016-1201791237/" target="_blank" rel="noopener">Snapchat on pace to have more than 58 million active users</a> this year, we’re skeptical.The man who created the Internet wants to <a href="http://www.nytimes.com/2016/06/08/technology/the-webs-creator-looks-to-reinvent-it.html?_r=0" target="_blank" rel="noopener">create a less centralized web</a> with more privacy and less government and corporate control.Should Twitter <a href="http://abovethelaw.com/2016/06/this-simple-tweak-could-fix-twitter/" target="_blank" rel="noopener">limit the number of tweets</a> users can send each day? <a href="http://www.sociallyawareblog.com/2015/02/17/status-updates-85/" target="_blank" rel="noopener">Other platforms</a> see the value in limiting posts.In the UK the number of arrests over <a href="http://www.dailymail.co.uk/news/article-3624059/Arrests-offensive-social-media-posts-soar-police-target-internet-trolls.html" target="_blank" rel="noopener">offensive social media posts</a> is soaring.Research shows an alarming number of people in the UK <a href="https://www.research-live.com/article/news/misleading-social-media-marketing-putting-businesses-at-risk/id/5008012" target="_blank" rel="noopener">can’t distinguish between marketing and non-commercial content on social media</a>, indicating potential breaches of the CAP Code (the UK’s version of the <a href="http://www.sociallyawareblog.com/2015/12/21/influencer-marketing-tips-for-a-successful-and-legal-advertising-campaign/" target="_blank" rel="noopener">FTC’s Endorsement Guides</a>). Here’s how social media marketers in the UK can stay on the <a href="http://www.sociallyawareblog.com/2015/10/05/how-uk-brands-that-use-vlogger-endorsements-social-media-for-marketing-can-stay-on-the-right-side-of-the-law/" target="_blank" rel="noopener">right side of the law</a>.Google co-founder Larry Page is <a href="http://www.theverge.com/2016/6/9/11893032/google-co-founder-larry-page-is-secretly-building-flying-cars" target="_blank" rel="noopener">secretly building flying cars</a>.Our attention spans are decreasing. Here’s how that should affect your brand’s <a href="http://www.adweek.com/socialtimes/john-stevens-guest-post-decreasing-attention-spans/640539" target="_blank" rel="noopener">website and social media strategy</a>.In a massive recent theft of Twitter usernames and passwords, “123456” was the most commonly used passcode by far. Sigh.

Social Links: Social’s potential to upend the investment industry; online ad fraud; a proposal to fix Twitter

Social media has upended a number of industries. Is Wall Street next? Facebook is getting into the video game live-streaming business. Steven Avery’s defense at

Social Links: Social’s potential to upend the investment industry; online ad fraud; a proposal to fix Twitter

Deluged with an unprecedented amount of information available for analysis, companies in just about every industry are discovering increasingly sophisticated ways to make market observations, predictions and evaluations. Big Data can help companies make decisions ranging from which candidates to hire to which consumers should receive a special promotional offer. As a powerful tool for social good, Big Data can bring new opportunities for advancement to underserved populations, increase productivity and make markets more efficient.But if it’s not handled with care, Big Data has the potential to turn into a big problem. Increasingly, regulators like the Federal Trade Commission (FTC) are cautioning that the use of Big Data might perpetuate and even amplify societal biases by screening out certain groups from opportunities for employment, credit or other forms of advancement. To achieve the full potential of Big Data, and mitigate the risks, it is important to address the potential for “disparate impact.”Disparate impact is a well-established legal theory under which companies can be held liable for discrimination for what might seem like neutral business practices, such as methods of screening candidates or consumers. If these practices have a disproportionate adverse impact on individuals based on race, age, gender or other protected characteristics, a company may find itself liable for unlawful discrimination even if it had no idea that its practices were discriminatory. In cases involving disparate impact, plaintiffs do not have to show that a defendant company intended to discriminate—just that its policies or actions had the discriminatory effect of excluding protected classes of people from key opportunities.As the era of Big Data progresses, companies could expose themselves to discrimination claims if they are not on high alert for Big Data’s potential pitfalls. More than ever, now is the time for companies to adopt a more rigorous and thoughtful approach to data.Consider a simple hypothetical: Based on internal research showing that employees who live closer to work stay at the company longer, a company formulates a policy to screen potential employees by their zip code. If the effect of the policy disproportionately excludes classes of people based on, say, their race—and if there is not another means to achieve the same goal with a smaller disparate impact—that policy might trigger claims of discrimination.Making matters more complex, companies have to be increasingly aware of the implications of using data they buy from third parties. A company that buys data to verify the creditworthiness of consumers, for example, might be held liable if it uses the data in a way that has a disparate impact on protected classes of people.Expanding Uses of Disparate ImpactFor decades, disparate-impact theories have been used to challenge policies that excluded classes of people in high-stakes areas such as employment and credit. The Supreme Court embraced the theory for the first time in a 1971 employment case called <a href="http://www.naacpldf.org/case/griggs-v-duke-power-co" target="_blank" rel="noopener">Griggs v. Duke Power Co.</a>, which challenged the company’s requirement that workers pass intelligence tests and have high school diplomas. The court found that the requirement violated Title VII of the Civil Rights Act of 1964 because it effectively excluded African-Americans and there was not a genuine business need for it. In addition, courts have allowed the disparate-impact theory in cases brought under the Americans with Disabilities Act and the Age Discrimination in Employment Act.The theory is actively litigated today and has been expanding into new areas. Last year, for example, the Supreme Court held that claims using the disparate-impact theory can be brought under the Fair Housing Act.In recent years, the FTC has brought several actions under the disparate-impact theory to address inequities in the consumer-credit markets. In 2008, for example, the agency challenged the policies of a home-mortgage lender, Gateway Funding Diversified Mortgage Services, which gave its loan officers autonomy to charge applicants discretionary overages. The policy, according to the FTC, had a disparate impact on African-American and Hispanic applicants, who were charged higher overages than whites, in violation of the Federal Trade Commission Act and the Equal Credit Opportunity Act.The Good and Bad Impact of Big DataAs the amount of data about individuals continues to increase exponentially, and companies continue to find new ways to use that data, regulators suggest that more claims of disparate impact could arise. In a report issued in January, the FTC expressed concerns about how data is collected and used. Specifically, it warned companies to consider the representativeness of their data and the hidden biases in their data sets and algorithms.Similarly, the White House has also shown concern about Big Data’s use. In a report issued last year on Big Data and its impact on differential pricing—the practice of selling the same product to different customers at different prices—President Barack Obama’s Council of Economic Advisers warned: “Big Data could lead to disparate impacts by providing sellers with more variables to choose from, some of which will be correlated with membership in a protected class.”Meanwhile, the European Union’s Article 29 Data Protection Working Party has cautioned that Big Data practices raise important social, legal and ethical questions related to the protection of individual rights.To be sure, government officials also acknowledge the benefits that Big Data can bring. The FTC in its report noted that companies have used data to bring more credit opportunities to low-income people, to make workforces more diverse and provide specialized health care to underserved communities.And in its report, the Council of Economic Advisers acknowledged that Big Data “provides new tools for detecting problems, both before and perhaps after a discriminatory algorithm is used on real consumers.”Indeed, in the FTC’s action brought against the mortgage lending company Gateway Funding Diversified Mortgage Services, the agency said the company had failed to “review, monitor, examine or analyze the loan prices, including overages, charged to African-American and Hispanic applicants compared to non-Hispanic white applicants.” In other words, Big Data could have helped the company spot the problem.Policy Balancing ActThe policy challenge of Big Data, as many see it, is to root out discriminatory effects without discouraging companies from innovating and finding new and better ways to provide services and make smarter decisions about their business.Regulators will have to decide which Big Data practices they consider to be harmful. There will inevitably be some gray areas. In its report, the FTC suggested advertising by lenders could be one example. It noted that a credit offer targeted at a specific community that is open to all will not likely trigger violations of the law. But it also observed that advertising campaigns can affect lending patterns, and the Department of Justice in the past has cited a creditor’s advertising choices as evidence of discrimination. As a result, the FTC advised lenders to “proceed with caution.”As the era of Big Data gets under way, it’s not bad advice for all companies.*    *    *This post <a href="http://www.marketwatch.com/story/big-data-can-lead-to-big-legal-problems-for-companies-2016-06-01" target="_blank" rel="noopener">originally appeared</a> as an op-ed piece in <a href="http://www.marketwatch.com/" target="_blank" rel="noopener">MarketWatch</a>.For more on potential legal issues raised by Big Data usage, please see our <a href="http://www.sociallyawareblog.com/" target="_blank" rel="noopener">Socially Aware</a> post, <a href="http://www.sociallyawareblog.com/2016/01/13/big-data-big-challenges-ftc-report-warns-of-potential-discriminatory-effects-of-big-data/" target="_blank" rel="noopener">Big Data, Big Challenges: FTC Report Warns of Potential Discriminatory Effects of Big Data</a>.