Check out the article on Internet firings posted on HR Hero’s “Technology for HR” blog. The article talks about the firing of the Applebee’s waitress who snapped a picture of a receipt on which the customer, a pastor, wrote: “I give God 10% Why do you get 18?” and posted it on Reddit. I was happy to provide commentary for the article on Applebee’s social media policy and suggest tips for employers dealing with embarrassing Internet activity of employees like the Applebee’s incident.
Month: February 2013
The Steven Tyler Act: When Celebrity Protection Clashes With the Constitution
The Senate Judiciary Committee of the Hawaii legislature just voted to approve the “Steven Tyler Act” (SB465), an anti-paparazzi law named after the Aerosmith lead singer, who personally showed up to testify in favor of the bill at a hearing today. The Tyler Act, which apparently was prompted by Tyler’s experience with paparazzi near his Maui home, attracted written testimony from an assortment of celebrities including Britney Spears, Neil Diamond, Tommy Lee, and Avril Lavigne. My favorite testimony letter was Ozzy Osbourne’s because it had a little cartoon drawing of Ozzy in the bottom right corner.
Cartoon from written testimony on SB465 by Ozzy Osbourne, 2/6/13
The final fate of the Tyler Act remains uncertain, but now that it’s taken an important step forward, I thought I’d share my thoughts on the bill in its current form. (The Tyler Act isn’t exactly related to technology law, but I’m blogging about it because I also practice in First Amendment, privacy, and media law.)
It’s important to understand that the Tyler Act mimics California’s anti-paparazzi law (which is currently facing its own legal challenges). As much as legal commentators panned the California law, the Tyler Act should attract its fair share of criticism, if not more, because its language is much more loose and vague. And that’s not good when it comes to writing a law. You know the Aerosmith song “I Don’t Wanna Miss a Thing”? Well, there are quite a few things the Tyler Act misses. Here are some examples.
The centerpiece of the California law is the creation of a new tort called “constructive invasion of privacy.” This kind of invasion of privacy is “constructive” in that it doesn’t require the defendant to have physically trespassed onto the plaintiff’s property. Use of a “visual or auditory enhancing device” is enough. So, a person using a telephoto zoom lens to snap pictures of J-Lo on the balcony of her home could be liable for invasion of privacy without having stepped foot onto J-Lo’s property. The idea is that use of devices to intrude into someone’s private space is just as invasive as physically entering into their space.
The Tyler Act uses the term “constructive invasion of privacy,” but it doesn’t exactly track the theory behind the tort. Here’s the main liability section of the Tyler Act:
A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.
See any reference to “visual or auditory enhancing device”? There is none. The Tyler Act says a person could commit a constructive invasion of privacy “through any means.” A cheapie disposal camera would do it. So would the audio recording app on your iPhone. And if devices lacking in any “enhancement” feature do the trick to capture a “visual image, sound recording, or other physical impression of another person,” query whether there was an invasion of personal space, constructive or otherwise. (Note that if an invasion into private space truly occurred, even in the absence of a physical invasion, Hawai‘i law already provides a remedy through the common law tort of intrusion into seclusion, which is a form of invasion of privacy.)
But the problems with the Tyler Act don’t stop there. The Act applies when the plaintiff is engages in a “personal or familial activity.” That language also appears in the California law, which is defined as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.” Cal. Civ. Code § 1708.8(l). The definition excludes “illegal or otherwise criminal activity ….” The meaning of “personal or familial definition” is pretty vague even with that definition, but at least the California law includes a definition. The Tyler Act doesn’t! It’s anyone’s guess what “personal or familiar activity” means under the Tyler Act.
Similarly, the Tyler Act doesn’t define “offensive” or “reasonable expectation of privacy.” Nor does it contain an exception for publicizing matters of “legitimate public concern,” unlike the California law. This is problematic because it imposes liability for conduct not remotely resembling the opportunistic antics of paparazzi. Suppose a celebrity’s Kauai mansion catches on fire, spreading flames to her neighbor’s homes. The celebrity rushes out to the sidewalk with her kids, watching as firefighters put out the blaze. A photojournalist arrives on the scene and takes a picture of the celebrity and her kids from across the street. He then sells the photo to a local daily newspaper, which uses it alongside a front-page article about the fire. That’s hardly TMZ-style content, but under the vague language of the Tyler Act, the photojournalist and newspaper could be sued for constructive invasion of privacy.
Now, you might ask, why would the newspaper be liable? That’s because the Tyler Act says:
Any person who transmits, publishes, broadcasts, sells, offers for sale, uses any visual image, sound recording, or other physical impression, or who subsequently retransmits, republishes, rebroadcasts, resells, reoffers to sell, or reuses any visual image, sound recording, or other physical impression that was taken or captured in violation of this section shall constitute a violation of this section if:
(1) The person had actual knowledge that the visual image, sound recording, or other physical impression was taken or captured in violation of this section; and
(2) The person received compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.
(Emphasis added)
Imposing liability for publishing information obtained in violation of the Tyler Act runs into First Amendment problems. Under Supreme Court precedent, the First Amendment protects speech that publishes the contents of a communication that was illegally intercepted as long as the publisher itself did nothing illegal to obtain the communication. See Bartnicki v. Vopper, 532 U.S. 514 (2001). Even more troubling is the Tyler Act’s authorization of courts to issue injunctions against future violations of the Act. Since publication of information obtained in violation of the Tyler Act could itself violate the Act, a court could literally issue an order “halting the presses.” That’s called a prior restraint, which is regarded by courts as the most offensive of First Amendment violations.
There are other problems with the way the Tyler Act is written – like the absence of an exception to liability for actions taken in a legitimate law enforcement investigation, or the fact that the Act is not limited to actions taken in Hawai‘i (unlike the California anti-paparazzi law, whose applicability is limited to actions within California) – but I think the point is made well enough. Although the Tyler Act is well-intentioned, more thought and care needs to go into making it a clear, constitutional law that doesn’t inadvertently turn well-meaning fans, reporters, and publishers into law-breakers.
Click Confusion Not the Same as “Actual Confusion”
Spike in YouTube Views and Google Search Errors Insufficient to Prove “Actual Confusion” in Trademark Infringement Claim – Scorpiniti v. Fox Television Studios, Inc., 2013 WL 252453 (N.D. Iowa Jan. 23, 2013)
Scorpiniti v. Fox Television Studios, Inc. is the latest case involving use of Internet popularity to prove infringement of a trademark or trade dress. In this case filed in Iowa’s federal district court, the plaintiff unsuccessfully argued that a sudden rise in the number of hits on a YouTube page bearing the mark in question is evidence of “actual confusion.”
The plaintiff, Louis J. Scorpiniti (Scorpiniti) registered the mark “THE GATE” with the U.S. Patent and Trademark Office for use in relation to “television broadcasing.” In 2007, Scorpiniti was developing his own religious-themed music television show, The Gate. Scorpiniti created a website for the show and completed a pilot (which he posted on YouTube) and the first episode (which he posted on his Facebook page). He never broadcasted his show on TV.
Fox Television Studios, Inc. (Fox) filed an application with the USPTO to register the mark “THE GATES” for use in relation to a new TV series, “The Gates”, about a police officer who moves into gated community inhabited by supernatural beings. Scorpiniti initially filed a Petition for Opposition to Fox’s mark, but later withdrew the petition and chose instead to sue Fox for trademark infringement. The Gates aired on ABC stations from June to September of 2010.
To prove infringement, Scorpiniti had to show that Fox’s use of THE GATES “creates a likelihood of confusion” between the two TV programs. One of the factors relevant to determining if there is “likelihood of confusion” is evidence of actual confusion.
The pilot episode of The Gate that Scorpiniti posted on YouTube experienced a spike in the number of views during the summer of 2010 when ABC was advertising The Gates. Scorpiniti argued that this was evidence of actual confusion. The court disagreed. Also unpersuasive to the court was the fact that a Google search of the term “abc the gate” yielded results in which Fox’s TV show was misspelled as “The Gate.” Spelling errors in an internet search or the fact that someone stumbles upon Scorpiniti’s YouTube video due to a search illustrates inattentiveness or carelessness on the part of the searcher, not actual confusion, the court said. Any viewer who mistakenly viewed the pilot episode of The Gate while searching for The Gates would be able to tell that the two shows come from different sources based on differences in their appearance, content and production value.
Another Court Interprets the CFAA Narrowly
A New York federal judge rules that misuse of computer information gained through legal access does not violate the CFAA – Advanced Aerofoil Techs., AG v. Todaro, 2013 WL 410873 (S.D.N.Y. Jan. 30, 2013)
Judge Carter of the Southern District of New York joined a growing number of federal courts adopting a narrow interpretation of the Computer Fraud and Abuse Act (CFAA) that precludes liability for misappropriation under the Act. Several high-level personnel in the plaintiff companies (AAT) defected to a competing company, apparently taking with them AAT’s confidential and proprietary technology. AAT sued the ex-employees for, among other things, alleged violations of the CFAA.
An obstacle that AAT faced in pressing the CFAA claim was the fact that the ex-employees had “unfettered and unlimited access” to the information they took with them. Liability under the CFAA requires that the defendant have “access[ed] a computer without authorization.” Courts across the country are split on whether the CFAA is violated where a person legally accesses to a computer but misuses the information obtained with such access, such as what the former AAT employers allegedly did.
After noting that the Second Circuit has not decided the issue, and surveying decisions on both sides of the issue, including those written by his colleagues in the same district, Judge Carter answered the question in the negative. A CFAA violation occurs when one accesses a computer without permission. Judge Carter gave three reasons for his conclusion. First, the ordinary meaning of the word “authorization” refers to the absence of permission. Second, the legislative history of the CFAA indicates that the Act is directed primarily at access instead of misuse. Third, a violation of the CFAA could lead to criminal liability, the statute should be read narrowly, and ambiguities should be resolved in favor of the defendant. Because AAT had not revoked the defendants’ unlimited access to its system when they siphoned off the confidential and proprietary information, the court dismissed the CFAA claim.
LegalTXTS Note: I’ve blogged on this issue quite a bit. That indicates increased use of the CFAA in data misappropriation cases, or the uneasiness courts have in stretching the CFAA beyond its origin as an anti-hacking statute–or both. Here are my previous posts on similar cases.
Court Carves Back Oracle’s Computer Fraud and Abuse Act Claim Against Gray Market Reseller
One Is Not Like the Other: Access vs. Use Restrictions Under the CFAA
DirecTV’s Work Rules Invalidated by NLRB
NLRB Strikes Down Restrictions on Employee Communications on Social Media and Elsewhere — DirectTV U.S. DirecTV Holdings, LLC, 359 NLRB 54 (Jan. 25, 2013)
On the same day that the D.C. Circuit Court of Appeals ruled that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional, the NLRB struck down several of DirectTV’s work rules, including one relating to social media use. The ruling comes as little surprise, as it mirrors the positions and rationale stated in previous Guidance Memoranda issued by the NLRB’s Office of General Counsel. Of course, this decision carries more weight because it’s issued by the Board itself (but query the ruling’s validity in light of the D.C. Circuit decision).
Restrictions on employee communication with the media
The first two rules instructed employees to “not contact the media,” and “not contact or comment to any media about the company unless pre-authorized by Public Relations.” Section 7 of the National Labor Relations Act (NLRA) protects employee communications with the media concerning labor disputes. The broad and unequivocal language of the rules could lead an employee to believe that such protected activity is not permitted under the rules, which is unlawful, the NLRB. The rules did not distinguish between protected and unprotected communications (e.g., maliciously false statements).
Restrictions on employee communication with NRLB agents
The next rule in question stated: “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the security department . . . who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” The NLRB found that this rule would make employees think that they must go through their employer before cooperating with an NLRB investigation, as NLRB agents could reasonably be considered “law enforcement” as far as labor matters are concerned. This violates Section 8(a)(4) of the NLRA, which protects employees who file unfair labor practice charges or who provide information in the course of an NLRB investigation. While an employer could have a legitimate interest in knowing about attempts by law enforcement agents to interview employees, the rule failed to separate out those situations from those in which the Section 8(a)(4) protections apply.
Confidentiality
DirecTV instructed employees to “[n]ever discuss details about your job, company business or work projects with anyone outside the company” and to “[n]ever give out information about customers or DIRECTV employees.” The rule identified “employee records” as one of the categories of “company information” that must be kept confidential. The NLRB struck down these rules because employees could reasonably understand them to restrict discussion of their wages and other terms of conditions of employment. The rule was also deficient in not exempting protected communications with third parties such as union representatives, NLRB agents, or other governmental agencies concerned with workplace matters.
Online Disclosures of “Company Information”
DirecTV posted a corporate policy on its intranet stating: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” In addition to the policies on the intranet, DirecTV issued a handbook with overlapping sets of rules governing employee conduct and effectively directed employees to read them as one. The handbook contains a confidentiality rule that defines “company information” as including “employee records.” Reading the two policies together, an employee could understand the intranet policy to prohibit online disclosure of information concerning wages, discipline, and performance ratings.
LegalTXT Notes: This ruling isn’t groundbreaking, but it confirms that the Board agrees with the positions taken in the previous OGC Guidance Memoranda on social media policies. The D.C. Circuit does cast a pall over the validity of this ruling, although the NLRB supported the ruling with multiple Board decisions that were issued well before the recess appointments were made.