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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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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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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Another great post from our sister blog, MoFo Tech:The potential for mobile payments is huge. So are the potential legal and regulatory hurdles.Banks, retailers, and pundits are paying a lot of attention to mobile payments, which typically involve the use of smartphones and tablets to pay for purchases.  But a lack of mobile infrastructure has kept the use of mobile payments fairly low in the U.S.The space is evolving quickly, however.  More infrastructure is being rolled out, while new software and cloud-based solutions are enabling payment processing without the need for a network of specialized in-store terminals.  For their part, consumers are already well equipped to take advantage of these developments.  Today, 61 percent of American consumers have smartphones or tablets, up from 48 percent last year, according to a recent study from Vantiv, a provider of payment processing strategies, and the Mercator Advisory Group, an independent research firm.Many of these consumers are already using these devices as shopping tools—comparing in-store prices with online prices, researching products, downloading coupons, and discussing potential purchases with friends.  So it’s fair to assume that consumers will adopt mobile payments quickly as they become easier and more widespread.  By 2018, Mercator estimates, the value of mobile payments will increase sevenfold, to $362.8 million a year, up from $51.4 million today.There’s a great deal of opportunity here.  But there’s also much to consider from a legal standpoint, because mobile payments represent the convergence of business, technology, and banking.  “You have to think about issues like the structure of the mobile payment offering, including the source and settlement of the funds to determine the applicable regulatory framework,” says Obrea Poindexter, a partner at Morrison & Foerster who leads the mobile payments group.  “There are technology issues relating to cybersecurity and authentication as well as regulatory issues, such as maintaining the privacy of consumer data and complying with anti-money laundering laws.”Mobile Wallets: Shake-out ComingMobile wallets are a key element in mobile payments, acting as a single point of access to an individual’s credit cards and accounts.  There are many companies offering wallets today, and different wallets are designed for different uses.  Looking at wallets designed for use at the retail point of sale (POS), Mercator estimates that consumers currently have more than three dozen to choose from.  In addition, there are several competing technologies for capturing POS payments, from near-field communications (NFC), which allows for contactless “waving the phone” payments, to QR-code-based approaches and geo-fencing, which identifies consumers as they enter a store.  All of this can be confusing for customers and companies alike–many observers expect that the market will consolidate into a smaller number of providers and technologies.Younger Consumers Are Bullish on the Growth of Mobile PaymentsConsumers still have reservations about mobile payments.  In the Vantiv/Mercator research, for example, they ranked security issues as a key barrier to mobile usage.  They also seem to question whether mobile payments offer a real advantage over current methods:  only 15 percent said they would prefer to use mobile payments over a credit, debit, or prepaid card today.  But they are more optimistic when looking a few years ahead.  Many think that mobile payments will be widespread within five years, and that they themselves will be using them.  These views are most pronounced among younger consumers age 18-34–a group that is something of a bellwether of future consumer attitudes.The Growing Compliance ChallengeMobile payments are poised for rapid growth, and that is attracting the attention of regulators from several quarters.  “Some laws are being discussed at the federal and state levels, and there is already a fair amount of activity coming from agencies that are updating their guidance to adapt to mobile payments,” says Rick Fischer, a senior partner at Morrison & Foerster.  He explains that mobile payments can fall under a variety of federal banking laws and agencies ranging from the Federal Deposit Insurance Corp. to the Consumer Financial Protection Bureau.  “And depending on the type of company involved, it could also involve agencies like the Federal Communications Commission and the Federal Trade Commission,” he says.  “So this is a complicated and changing field.”

A Smart Wallet

Another great post from our sister blog, MoFo Tech: The potential for mobile payments is huge. So are the potential legal and regulatory hurdles. Banks, retaile

A Smart Wallet

On January 24, 2014, in a case filed against Facebook by German consumer protection association <a href="http://www.vzbv.de/">VZBV</a>, the Berlin Court of Appeal (“Court”) upheld a lower court ruling that Facebook’s “Friend Finder” function is unlawful. The Court agreed with the Berlin Regional Court’s <a href="http://www.zdnet.com/blog/facebook/facebook-loses-friend-finder-ruling-in-germany/10037">2012 decision</a> that the Friend Finder function violates both German data protection law and unfair trade law, and re-affirmed the invalidity of several clauses in Facebook’s privacy notice and other online terms and conditions. VZBV has reported the ruling as a consumer victory, stating that the ruling recognizes that privacy is a consumer protection issue.At the time of the original complaint, Facebook’s Friend Finder function invited users to “find friends from different parts of [their] life” by providing various pieces of information to the Facebook site, such as the schools their friends attended or the names of their friends’ current employers. Friend Finder also invited users to upload personal contacts from other platforms, including Skype and <a href="http://www.msn.com/">MSN</a>, which enabled Facebook to add those contacts to its database and send them emails inviting them to join the social media platform. The complaint alleged that once Facebook had gathered this data, it could be used for other purposes, including commercial purposes. The Court held that Facebook had failed to provide adequate notice to users regarding this data import, and that its importing of non-users’ contact information constituted the collection of personal data of individuals who were not registered Facebook users without their knowledge or consent.First, the Court established that German law applies to Facebook in this case because, although the social network’s European headquarters are based in Ireland, the U.S. parent company processes the applicable data and sets cookies on users’ computers located in Germany. The Court also pointed out that Facebook’s use of German service providers results in the application of German law. These facts distinguished the case from a recent ruling of the Schleswig-Holstein Administrative Court, which stated that Irish law—not German or U.S. law—applied to certain Facebook marketing activities in Germany because those activities were controlled from Ireland.Turning to Friend Finder, the Court found that a breach of data protection law also constitutes a breach of the <a href="http://www.gesetze-im-internet.de/englisch_uwg/">German Unfair Trade Act</a> (“Unfair Trade Act”). More specifically, according to the Court, the fact that the Friend Finder function collected certain data without informing users or obtaining their consent, breached Germany’s Data Protection Act and Telemedia Act, and the subsequent use of such data for commercial purposes without notice or consent violated the Unfair Trade Act.The Court also found that Facebook’s email invitations to non-users asking them to register with Facebook, without recipients’ prior explicit consent, amounted to unlawful email marketing under the Unfair Trade Act. The Court highlighted that Facebook itself was the sender of these emails, not Facebook’s users (as might be the case with other companies’ “tell-a-friend” marketing functions), and that Facebook users were deceived because they were unaware that the contact information they had uploaded to the service would be used to send emails to their contacts.Finally, the Court found certain clauses in Facebook’s terms and conditions (Allgemeine Geschäftsbedingungen) and privacy terms (Datenschutzrichtlinien) to be invalid, for a variety of reasons. For example, Facebook’s terms and conditions granted the company a worldwide license to use works such as photographs and videos uploaded by users, and the wording of the terms would have permitted the marketing and sale of such materials to other companies for commercial use. The Court found such license to be invalid without obtaining users’ specific consent based on “clear” and “easy to understand” language. Various other provisions, including those that gave Facebook the right to unilaterally modify its privacy terms and other terms and conditions, were also found to be unclear and therefore invalid.Facebook’s mechanism for obtaining consent to its privacy terms turned out to be critical to this case. Currently, consumer associations are only permitted to bring actions in Germany regarding privacy terms that are considered to be “general terms and conditions” and thereby subject to certain rules concerning standard terms and conditions. Where those rules apply, Germany’s unfair trade provisions are applied. For several years now, VZBV has been lobbying the German government to pass legislation permitting actions related to data protection to be brought directly, and indeed, the German government announced in February 2014 that a draft bill amending the German Injunctions Act is expected in April 2014.The amendments to the German Injunctions Act are anticipated to extend the scope of certain of its provisions that permit consumer associations to initiate summary proceedings to defend individuals’ rights, so that such provisions cover data protection laws. If these amendments are made, then the Injunctions Act would provide a new legal basis for litigation in Germany related to privacy and data protection.

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German Court Rules Against Facebook’s “Friend Finder”

Data for the Taking: Using Website Terms and Conditions to Combat Web Scraping

On January 24, 2014, in a case filed against Facebook by German consumer protection association VZBV, the Berlin Court of Appeal (“Court”) upheld a lower court 

German Court Rules Against Facebook’s “Friend Finder”

Please join Socially Aware editor John Delaney as he chairs Practising Law Institute’s (PLI) “Social Media 2014: Addressing Corporate Risks.” Issues to be addressed at the conference include:<ul><li>Social media: how it works, and why it is transforming the business world</li><li>Drafting and updating social media policies</li><li>User-generated content and related IP concerns</li><li>Ensuring protection under the CDA’s Safe Harbor</li><li>Legal issues in connection with online data harvesting</li><li>Online marketing: new opportunities, new risks</li><li>Privacy law considerations</li><li>Practical tips for handling real-world issues</li></ul>Representatives from Facebook, Pinterest, Google and other companies will be speaking at the event. The conference is being held in San Francisco on Monday, February 10th and in New York City on February 26th. The February 10th event will be webcasted. For more information or to register, please visit PLI’s website <a href="http://www.pli.edu/Content/Seminar/Social_Media_2014_Addressing_Corporate_Risks/_/N-4kZ1z12f99?ID=176431">here</a>.

Social Media 2014: Addressing Corporate Risks

Please join Socially Aware editor John Delaney as he chairs Practising Law Institute’s (PLI) “Social Media 2014: Addressing Corporate Risks.” Issues to be addre

Social Media 2014: Addressing Corporate Risks

Mark Zuckerberg famously stated that the purpose of Facebook is “to make the world more open and connected,” and indeed Facebook, other social media outlets and the Internet in general have brought worldwide openness and connection-through-sharing to levels unparalleled at any point in history. With this new universe of limitless dissemination often comes the stripping away of privacy, and “revenge porn,” a relatively new but seemingly inevitable outgrowth of social media and the Internet, is stripping away privacy in the most literal sense.Defining “revenge porn” is relatively simple and does not require any sort of <a href="http://en.wikipedia.org/wiki/Jacobellis_v._Ohio">“I know it when I see it”</a> test; in short, “revenge porn” is the act of publicly disseminating nude photographs or videos of somebody without her or his consent. The name derives from the fact that the act is most often associated with spurned men posting photos on the Internet that were received from their ex-girlfriends in confidence as “revenge” for breaking up with them or otherwise hurting them. But recently, more and more photos are popping up that were either taken without the victim’s consent or that were obtained by hacking a victim’s email or computer.  Revenge porn website operators invite users to post nude photos of their exes (or of anybody else, for that matter) and often allow the community to comment on the photos (which in many cases results in a barrage of expletives aimed at shaming the victim).Recently, operators of revenge porn sites have taken attacks to a higher level, inviting visitors to post victims’ full names, addresses, phone numbers, places of work and other items of personal information alongside their photographs.  In some cases, victims’ faces are realistically superimposed onto nude photographs of pornographic actors or actresses in order to achieve the same effect when no actual nude photographs of the victims can be found. Victims of revenge porn often <a href="http://www.huffingtonpost.com/2014/01/09/revenge-porn-stories-real-impact_n_4568623.html">suffer significant harm</a>, facing humiliation, loss of reputation, and in some cases, loss of employment. Due to the all-pervasive and permanent nature of the Internet, once a victim’s photo is posted online, it is very difficult for him or her to have it completely removed.  Operators of revenge porn sites have sometimes capitalized on this fact by offering to remove the photos for a fee (or running advertisements for services that will do so).Operators of revenge porn websites often shield themselves behind the First Amendment, and website operators have been known to <a href="http://www.rollingstone.com/culture/news/the-most-hated-man-on-the-internet-20121113">employ sophisticated legal teams</a> in order to protect themselves from civil and criminal liability and to maintain operation of their sites.  Nonetheless, the law provides several avenues for victims seeking to have photos removed from websites, obtain restitution and, to the extent damage has not already been done, clear their names.Self-Help as a First StepAlthough the Internet is the tool used to disseminate revenge porn, it also now provides resources for victims who seek help in dealing with this invasion of privacy.  The website <a href="http://www.WomenAgainstRevengePorn.com">WomenAgainstRevengePorn.com</a> contains a step-by-step guide to getting nude photos removed from the Internet, as well as contact information for lawyers and other advocates for revenge porn victims in various states.According to WomenAgainstRevengePorn.com, the first step to mitigating the damage of revenge porn is to establish more of an online presence.  Although this may be counterintuitive, it is actually a logical approach: one of the biggest harms of revenge porn is that a friend, family member or employer will find nude photos when entering the victim’s name into a search engine.  By opening Facebook, Twitter, Pinterest and Instagram accounts under his or her name, a victim may be able to move the revenge porn photo to a lower position in search engine results.Because nude photos tend to be spread quickly on the Internet, WomenAgainstRevengePorn.com also encourages victims to use Google’s <a href="http://www.google.com/insidesearch/features/images/searchbyimage.html">reverse image search engine</a> to find all websites where the victim’s photos may appear.  After taking careful note of all locations where such photos appear, victims are encouraged to file police reports.Copyright InfringementThe next step in removing photos recommended by WomenAgainstRevengePorn.com, which has been successful in a number of cases (including as described in this particularly fascinating account), is for the victim to take advantage of U.S. copyright law.  Under U.S. copyright law, a person who takes a nude photo of herself or himself is the owner of the copyright in that photo and thus can enjoin others from reproducing or displaying the photo.  A victim may, therefore, submit a “takedown” notice under <a href="http://www.law.cornell.edu/uscode/text/17/512">Section 512 of the Digital Millennium Copyright Act</a> (DMCA) to the webmasters and web hosts of the offending sites as well as to search engine sites where the nude photo may come up as a search result (Google even provides step-by-step instructions).  Because the DMCA provides an infringement safe harbor to web service providers who comply with the statute’s requirements, many search engines and web hosts will remove revenge porn photos upon receipt of a takedown notice.  If the photo is not removed, the victim may consider registering his or her copyrights in the photos and suing the web host or search engine in federal court, although this may not always be a desirable approach for the reasons described below.Using copyright law to fight revenge porn, while effective to an extent, is not without problems, including the following:<ul><li>It only works if the victim owns the copyright.  While many revenge porn photos are taken by the victim himself or herself and then posted without his or her consent, this is not always the case. In situations where another person took the photo –e.g., if the victim’s girlfriend or boyfriend took it, or if the photo was taken secretly without the victim’s consent–the victim would not be the copyright owner and thus could not use copyright law to force removal.</li><li>Website operators may reject copyright infringement claims and refuse to remove the offending photos.  Although a victim could move forward with litigation to obtain an injunction and possibly monetary damages, revenge porn operators are often confident that (a) the costs of litigation are too expensive for many revenge porn victims and (b) many revenge porn victims fear making their situations even more public by bringing suit. To mitigate the risk of such increased exposure, victims can attempt to bring suit pseudonymously, and there are resources on the Internet devoted to assisting with this.</li><li>Even if a website operator removes the photos of one victim who follows all of the necessary steps to enforce his or her copyright, the website will still display photos of hundreds, if not thousands of other victims.</li></ul>Thus, copyright law is not always enough to effectively combat revenge porn.Defamation, Privacy and Other Related LawsSeveral victims of revenge porn, as well as people who have had other personal information of a sexual or otherwise inappropriate nature published on revenge porn websites, have launched civil lawsuits under theories such as defamation, invasion of privacy, and identity theft.  As we have <a href="https://www.sociallyawareblog.com/2013/07/23/thedirty-com-goes-to-trial/">reported previously</a>, one high profile example of this came in July 2013, when a federal judge in Kentucky allowed a defamation lawsuit against the operator of a site called TheDirty.com to proceed and a jury awarded the victim (about whom the site had published false accounts of her sexual history) $338,000.Prosecutors have also taken advantage of the fact that the operators of these sites often engage in criminal activity in order to obtain and capitalize on nude photos.  On January 23, 2014, Hunter Moore, known by some as the “<a href="http://www.rollingstone.com/culture/news/the-most-hated-man-on-the-internet-20121113">most hated man on the Internet</a>” and probably the most famous and successful revenge pornographer to date, was <a href="http://arstechnica.com/tech-policy/2014/01/feds-arrest-most-hated-man-on-the-internet-in-revenge-porn-hacking-case/">arrested on charges of illegally accessing personal email accounts</a> in order to obtain photos for his revenge porn site.  Further, California Attorney General Kamala Harris recently <a href="http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-arrest-revenge-porn-website-operator">announced the arrest of a revenge porn site operator</a> for 31 accounts of conspiracy, identify theft and extortion based on the unauthorized posting of nude photos.  Depending on the outcome of these cases and civil cases such as that against TheDirty.com (and their inevitable appeals), revenge porn victims may soon have additional avenues of legal recourse.The most commonly used defense of website operators against charges like those discussed above is <a href="http://www.law.cornell.edu/uscode/text/47/230">47 U.S. Code § 230(c)(1)</a>, the provision of the Communications Decency Act of 1996 (CDA) that states: “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Revenge porn website operators have cited this statutory provision to argue that they are not responsible for the images they host if the content was provided by other users.  However, <a href="http://www.huffingtonpost.com/mary-anne-franks/section-230-the-lawless-internet_b_4455090.html">§ 230 might not provide a defense</a> in all cases.  First, § 230 does not grant a website operator immunity from federal criminal laws, intellectual property laws or communications privacy laws (such as the laws that Hunter Moore allegedly violated).  For example, if a website operator uses a photo of a victim submitted by a third party to extort money from the victim, § 230 would not provide any defense. Second, § 230 may not protect a website operator if the site contributes to the creation of the offending content.  In the case against TheDirty.com referenced above, the court rejected the operator’s § 230 defense, pointing out that the operator, who edited and added commentary to the submitted offending content, “did far more than just allow postings by others or engage in editorial or self-regulatory functions.” It is noteworthy, however, that the website operator of TheDirty.com has filed an appeal in the Sixth Circuit and that TheDirty.com <a href="https://www.sociallyawareblog.com/2012/04/26/a-dirty-job-thedirty-com-cases-show-the-limits-of-cda-section-230/">did prevail in a 2012 case based on similar facts</a>).State Anti-Revenge Porn LawsAnother approach to deterring website operators from posting unauthorized nude photos is passing laws that criminalize that specific activity.  As of today, only two states, New Jersey and California, have such laws. These laws are fairly limited in scope in order to pass constitutional muster under the First Amendment. California’s law, enacted on October 1, 2013, <a href="http://blog.ericgoldman.org/archives/2013/10/californias_new_1.htm">is subject to a number of limitations</a>. For example, it does not cover photos taken by the victim himself or herself, it does not apply if a third party obtains the photos through hacking, and a website operator can only be prosecuted if the state can prove that the operator intended to cause emotional distress.  Further, the penalties under this law are relatively minor: distribution of unauthorized nude images or videos is a misdemeanor, with convicted perpetrators facing six months in jail and a $1000 fine.  Nonetheless, free speech advocates, including the Electronic Frontier Foundation (EFF), have criticized the law, stating that it is overly broad, criminalizes innocent behavior, and violates free speech rights.Despite broad objections against anti-revenge porn laws from the EFF and <a href="http://reason.com/blog/2013/10/09/should-government-ban-revenge-porn">various</a> other free speech advocates, legislatures in several other states, including <a href="http://www.theverge.com/2013/10/7/4813644/new-york-lawmakers-look-to-criminalize-revenge-porn">New York</a>, <a href="http://www.huffingtonpost.com/2013/12/24/rhode-island-revenge-porn-bill_n_4497378.html">Rhode Island</a>, Maryland and <a href="http://wamu.org/news/14/01/15/virginia_legislator_introduces_bill_criminalizing_revenge_porn">Virginia</a>, have introduced laws that would criminalize operation of revenge porn websites.  There is also discussion about enacting a <a href="http://blogs.wsj.com/law/2013/11/25/anti-revenge-porn-activists-seek-federal-law/">federal anti-revenge porn statute</a>. Whether these laws will be enacted, and the extent to which prosecutors will actually invoke these laws if they are passed, remains uncertain. But such laws could become powerful weapons in the fight to eliminate revenge porn.As revenge porn is a worldwide phenomenon, jurisdictions outside the U.S. have also passed laws aimed at punishing the practice. For example, a law criminalizing non-consensual distribution of nude photographs of other people was passed in the <a href="http://www.kitguru.net/channel/jon-martindale/australian-state-outlaws-revenge-porn/">Australian state of Victoria</a> in December 2013. And, in January 2014, the <a href="http://www.law360.com/articles/499212">Israeli parliament passed a law</a> that criminalizes revenge porn, punishing website operators who publish unauthorized photos or videos of a sexual nature with up to five years in prison.ConclusionAs long as people fall in (or out of) love (or lust) and cameras and the Internet exist, the proliferation of revenge porn websites will remain a troubling issue.  As discussed above, however, the law does provide at least some recourse to the victims of revenge porn.

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Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a

Jessica Kaufman

Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a professional services firm in a malpractice action; a lingerie company facing consumer protection claims, including claims of false advertising; and financial institutions facing claims under the federal and state contract and antitrust laws, RICO Act, Right to Financial Privacy Act, Fair Debt Collection Practices Act, and state unfair and deceptive practices statutes. She also regularly advises and represents clients in complex commercial disputes.What do you like best about your work? Our work is our role as problem solvers. As litigators, we help clients address immediate problems. But when we know our clients and their businesses well, our clients also turn to us for longer term advice, to help identify issues before they arise, and think about how to do things better.What do you enjoy doing in your free time? I try to work with my hands. I started learning wheel-thrown pottery last year and enjoy forcing my family and friends to accept impractically shaped mugs, not just at Christmas, but — lucky for them — all year long.How do you see your practice changing in the next few years? I see my practice including more state AG enforcement work in the years ahead. The regulatory environment for our financial services clients is poised to change dramatically at the federal level; active AGs in New York and California will see that as an opportunity to fill the void.

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

Keeping Privates Private: The Legal Landscape of Revenge Porn

Mark Zuckerberg famously stated that the purpose of Facebook is “to make the world more open and connected,” and indeed Facebook, other social media outlets and

Keeping Privates Private: The Legal Landscape of Revenge Porn

Even with the publication of draft “best practices” by the California Attorney General (AG), website operators remain uncertain as to their obligations under the new <a href="http://www.sociallyawareblog.com/2013/09/04/do-not-track-comes-to-caloppa/">do-not-track disclosure requirements</a> of the state’s Online Privacy Protection Act (“CalOPPA”), which took effect on January 1, 2014.The new provisions require privacy policy disclosures with respect to:  (1) a site operator’s tracking of its visitors when they are on third-party sites (if it engages in such tracking) and (2) any “other party’s” tracking of site visitors when they are on third-party sites.In the first case only, the law requires that the operator disclose how it responds to browser do-not-track signals or other do-not-track choice mechanisms.  It does not impose the same disclosure obligation with respect to “other parties”—rather, it requires only that the operator disclose whether other parties engage in such tracking.During a December 10, 2013 call with industry representatives, consumer advocates and other interested parties, the AG’s office took the position that a service provider is not the same as a site operator but instead should be treated as an “other party” for purposes of the law.  (This position is consistent with the law’s definition of an “operator,” which appears to exclude service providers.)  It follows that the site operator would not have to disclose a choice mechanism with respect to any such “other party.”As a practical matter, this should be a moot point for an operator that uses third parties that are members of the Network Advertising Initiative and/or Digital Advertising Alliance, as such operator should already be contractually required to disclose how site visitors may opt out of cross-site tracking for online behavioral advertising purposes.  Site operators should keep in mind, however, that CalOPPA’s provisions cover any type of cross-site tracking—which may also include tracking for analytics or other purposes.On December 20, 2013, the AG’s office circulated a draft of its best practice recommendations for online tracking transparency.  The draft notes that the recommendations are not intended to tell a site operator what disclosures are necessary to comply with CalOPPA.  Rather, they will, “in some places offer greater privacy protections than required by . . . law” and are intended to “encourage the development of privacy best practice standards.”  The draft reflects this, by recommending disclosures that go beyond those required by the law.  For example, they:<ul><li>Urge a site operator that does not engage in cross-site tracking to tell its users that it does not engage in such tracking.  The law requires no such affirmative disclosure; and</li><li>Encourage a site operator that engages in cross-site tracking to both:  (a) disclose how it responds to a browser’s do-not-track signal or similar communication from a site user and (b) provide a link to a program that offers choices in connection with online tracking.  The law requires that such a site operator disclose how it responds to browser do-not-track signals or other mechanisms that provide users with choices (not both), and it permits the operator to comply by providing a link to an online choice program.</li></ul>The AG accepted comments on its draft until January 6, 2014, and it intends to issue final guidance during the second half of January 2014.Although site operators need to proceed with great caution, our sense is that the AG’s office is unlikely to bring any actions for violations of the amended statute prior to issuing its final guidance.  If the AG’s office does bring such an action, we suspect that the action would most likely involve a “slam dunk” situation—i.e., where a site operator engages in cross-site tracking but makes absolutely no mention of do-not-track, third parties or an opt-out in its privacy policy.Socially Aware will provide an update after the AG publishes its final best practice recommendations.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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Website Operators Await Final Guidance Regarding Compliance With California’s “Do-Not-Track” Disclosure Requirements

Website Operators Await Final Guidance Regarding Compliance With California’s “Do-Not-Track” Disclosure Requirements