In a recent Corporate Counsel article, the authors describe a Federal Trade Commission ruling about the disclosure of connections between corporate advertisers and those who shill, directly or indirectly, the advertisers’ wares. 

Jamie Oliver, a chef and a child advocate focused on ensuring kids receive proper nutrition through their school lunch programs as well as at home, has a television show, Jamie Oliver’s Food Revolution, showing how he changes eating habits in school districts (this season he is in Los Angeles).  In each episode, he creates a visual showing the terrible foods kids are putting in their bodies.  It’s one thing to tell kids (or their parents) that fast food and processed food is bad for them, it is quite another to create a visual showing how bad it is, and creating such a powerful visual that it convinces those kids, their parents and the audience watching the show (including myself) how bad those foods are.  In a recent episode, he filled a family’s house with all the fast food they consume in a year.  Every square inch of furniture and floor was covered.  In another episode, he filled a school bus with sugar to show how much sugar the school board permitted in the kids lunch meals over a year.  It was powerful images like those that made folks change their minds and change their behavior.

When preparing for trial, we can take a page out of Jamie’s book, and think about what visuals (whether a photograph, a diagram, an animation, or some other representation) that encapsulates our theme and does so in such a powerful manner that the image we create carries through the trial, into the deliberation room and turns the jurors’ hearts and minds toward our view-point and toward our position.  Keep a file folder in your office drawer where you include pictures, images and ideas you clip from magazines and newspapers.  These images may later serve you at trial.

Being that it is Monday, my partner Craig Salner has his weekly tip for young lawyers.  This week he discusses the importance of getting involved with social networking.  You can find his post at http://csalner.wordpress.com/.

Ad Age recently posted an article addressing the meteoric rise and overwhelming dominance of the smartphone.  At the end of this holiday season, over 50 percent of mobile phone users will be using a smartphone.  A year from now, that figure is projected to almost double, to 90 percent of mobile users.  Moreover, smartphone capabilities are growing almost as fast as their market saturation.  I regularly use my phone as a search tool, GPS, communications device (most of which centers on e-mail) and social hub, and I do not consider myself to be a “power user.”  Despite the amazing smartphone developments of the past 5 years, there are more on the horizon.  If the experts are right, we will soon be using our phones in place of our wallets, for identification and point of sale purchases.  Phones could be used to unlock and start our cars and to open our garage doors and set our home thermostats.  This week, conference attendees will be using the DRI smartphone App to keep track of their schedule and contact other attendees.  However, like most any “smart” device, the more we use our phones the more data we generate regarding our whereabouts, activities and lifestyles.

Attorneys used to subpoena cell phone records to see if litigants were on their phones at the time of an injury or during an auto accident.  Already, Historical Cellular Reconstruction (HCR) can be used to provide the history of a phone’s probable location, regardless of whether a user was actually on their phone.  HCR is not based on GPS data, but upon data and information maintained by the cellular provider related to a particular cell phone’s connection to a given cell tower.  Although HCR does not result in pinpoint precision, it can often place a phone within a very small vicinity.  If a user’s cell phone is turned on and the GPS is in operation, the precision increases dramatically.

Now attorneys look for information and material addressing whether a litigant was texting, surfing the web, on Facebook or taking one of virtually countless actions on their cell phones during the time of a given event, or in the hours and days leading up to a significant event.  Lawyers can use cell phone records to compare the location of a litigant to their claimed location.  This is particularly relevant where litigants, such as commercial drivers, are required to routinely log their position.  Records may indicate that an allegedly injured party went to an amusement park, or that an allegedly incapacitated person made a purchase.  The possibilities already seem endless, and as smartphone services continue to expand, so will the potential for using the resulting data in litigation.  As more and more opportunities are created by smartphone data, attorneys need to remain mindful of the fact that there may be data available that will impact their case.  

The legal community is beginning to take notice of the trend of moving away from paper and toward eBooks. Attorney Jean P. O'Grady recently blogged on the topic.  Ms. O’Grady concluded that the eBook model is a poor fit for the legal community.  

The American Lawyer recently reported on a decision by federal district court Judge William Pauley, III that is likely to have a lasting impact in the cloud-based storage and computing industry.  Cloud-based computing has been attracting increasing media attention this year, as Google and Amazon rolled out their cloud based music and storage services and Apple announced the availability of iCloud.  In 2007, recording giant EMI sued one of the cloud industry trailblazers, MP3tunes, for allowing users to access and store unauthorized music via its service.

The New York Times reports that MP3tunes allows users to buy songs online as well as add to the collections in their cloud based lockers by searching for songs being offered for free by unauthorized 3rd party providers.  Judge Pauley recently provided a highly anticipated summary judgment ruling noting that MP3tunes can be held liable for approximately 500 songs that EMI identified as being traded without authorization, but not for unauthorized content that users obtained outside of MP3tunes.  The Judge ruled that the Digital Copyright Millennium Act (D.M.C.A.) “does not place the burden of investigation on the Internet service provider.”  This affords the cloud-based business model protection, as “the D.M.C.A. shields online companies from copyright violations committed by their customers.”  However, MP3tunes’ went a step further by allowing its customers to use a built in search device to find and download free music from 3rd party sites, a service it calls sideload.  Judge Pauley ruled that the D.M.C.A. does not protect the company from what could be viewed as actively assisting its customers in obtaining and storing unauthorized music. The ruling should not have an impact on cloud based services that allow users to upload music and/or files that are already in their possession, such as Google Music and Amazon Cloud, or cloud services that negotiate special licenses from record companies, such as iCloud.  Notably, Google was among the companies that submitted amicus briefs in support of MP3tunes.

During the past two months, FICO quietly rolled out a program to score individuals on the probability that they will take their prescription medications in the manner prescribed. As the privacy implications begin to materialize, let me restate the gist of the program: The company that compiles data to assign a credit score to virtually every citizen in America is now compiling data to assign the population with a score that attempts to predict whether you will be a “good” patient - whether you will take your medications as directed.

The New York Times previewed the program on June 20, 2011, noting that “nearly three in four Americans do not follow doctor’s orders for taking prescription drugs... [while] others forget to pick up their drugs from the pharmacy, skip doses, take their pills at the wrong time or take too much or too little.” In an alleged effort to combat the 125,000 annual deaths associated with the phenomenon, FICO is now selling a service that attempts to predict who will take their medications as prescribed. According to FICO, “insurance companies and other health care groups will use the score to identify those patients who could benefit the most from follow-up phone calls, letters and e-mails to encourage proper use of medication.” Within the next 12 months, FICO expects to score approximately 10 million patients.

While the privacy implications of this service are obvious, they become even more troubling when you consider the mounting pitfalls associated with continually expanding efforts associated with data mining. On Tuesday, the MIT publication Technology Review summarized the issue by noting that “a complex picture of your personal life can now be pieced together using a variety of public data sources, and increasingly sophisticated data-mining techniques.” Unfortunately, the public’s privacy rights are rarely considered and the resulting “picture” is often inaccurate. Technology Review reported that last week at the Black Hat security conference in Las Vegas, researchers were able to show how a photograph of a person “can be used to find his or her date of birth, social security number, and other information by using facial recognition technology.” The researchers, including Carnegie Mellon professor Alessandro Acquisti, acknowledged that the information is being used to “prejudge a person on many levels – as a prospective date, borrower, employee, tenant” and, in the case of FICO’s new program, as a prospective patient.

Looking further at the example of FICO’s program, the potential implications of inaccurate or improperly released information are profound. What is to keep an insurance company from overtly, if not surreptitiously, allowing the score to influence their healthcare coverage decisions? What if the information is inaccurate? What if a patient changes pharmacies or a divorced couple changes the way they obtain their child’s medications – will those changes be recorded in an accurate and timely manner in FICO’s score data, or will the patient appear as though they fail to comply with their doctor’s orders? Worse, there is no mechanism to “opt out” of such reporting and, to the extent that a patient ever learns their score to begin with, the mechanism for changing an error is, at best, unclear.

It is clear that data mining efforts are exploding in America. Unfortunately, it does not appear that safeguards are keeping up. Citizens have a right to know who is compiling data on them, what that data consists of and who it is being provided to. They also have a right to challenge publication and inaccuracies. However, until lawmakers provide a framework to make that possible, or at least realistic, individuals need to be mindful of the electronic trail their actions are leaving.

For the last week or two, the lead story in international media has been the cell phone hacking scandal at the News of the World in London.  As the investigation into those events has widened and details have become publicly known, we have learned that the hacking may have extended to other media outlets and most likely took place outside of the United Kingdom, including in the United States.  Frankly, before this story broke, I never considered that hacking into cell phones by a private person or entity might be possible.  However, now that we know that cell phone privacy may be a real concern, there may be several implications for the legal community.

The first concern we should all have must be our own cell phone security.  It appears that the cell phone hacking allegedly perpetrated by the News of the World was accomplished primarily by hacking into the voicemails of the targets.  The scheme was actually quite simple.  Most people have a four digit code to access their voicemails.  According to a recent ABC News report, the most common passcodes are 0000, 1234, 5555, or the last four digits of social security numbers or the birthdates of the user or a close family member.  Obviously, these are not hard to guess.  Furthermore, people tend to use the same passcodes, PINs and passwords for multiple applications, so finding those codes can lead to even more information, accounts, etc. being compromised. 

Since we as lawyers are entrusted with the private and proprietary information of our clients, we have a duty to safeguard that information. We should now all be aware of the risks of cellular privacy and take steps to ensure that our clients' information, as well as our own, remains confidential.  We need to make sure that our voicemails are protected by unique and difficult to decipher PINs and deleted once received. Unfortunately, publicity of events such as the News of the World hacking scheme can lead to many ill-intentioned people learning a new method to steal information or assets.  We can expect this type of act to spread until further security protocols to prevent it are developed.

Another potential implication of the cell hacking scandal is the possibility of attracting the interest of members of the plaintiff's bar interested in pursuing claims related to cellular security.  The victims of the recent cellular hacking most likely will have claims against the perpetrators for invasion of privacy and similar torts.  If the practice of accessing private data of others through cellular phones is more widespread, and it certainly appears from recent news that it is, then we can expect that there will be attorneys out there who will begin marketing the representation of those who have been victims of that practice.  You can expect that the targets will be not only be the hackers,  but also entities or people who may have been in a position to prevent or mitigate the acts.  Our clients will need to be advised accordingly.

A number of media outlets have been reporting that the European Union is investigating Facebook’s rollout of its new face-recognition photo-tagging system.  Mashable reported that the new feature “recognizes” faces in photos, which enables users to connect a face in a photo to a user in a much easier “semi-automated process.”  More specifically, Facebook provides suggestions for individuals in photos, and the user chooses to either accept or reject them.  The feature is now enabled by default, though it can be disabled by altering an account’s privacy settings.

The New York Times reported that, on Wednesday, European Union data protection regulators announced that they would investigate the feature.  Gérard Lommel, a Luxembourg member of the Article 29 Data Protection Working Party, stated “tags of people on pictures should only happen based on people’s prior consent and it can’t be activated by default.”  He went on to note that tagging suggestions “can bear a lot of risks for users.”  In an emailed statement, Facebook noted that it “launched Tag Suggestions to help people add tags of their friends in photos; something that’s currently done more than 100 million times a day.  Tag suggestions are only made to people when they add new photos to the site, and only friends are suggested.”  Meanwhile, the Electronic Privacy Information Center, based in Washington, is working on its complaint and is expected to file it with the FTC today. 

The privacy concerns associated with the new face-recognition feature are generally obvious.  Individuals should have a say in whether and where their photographic image is distributed.  Once a photo enters the digital domain, it is difficult if not impossible to “undo” that publication.  A photo that one user deems harmless fun, may not appear that way to the subject’s employer.  Although Facebook users could already tag photos manually, this feature encourages tagging. Further, it would appear to make it easier for users to tag photos of distant “friends,” a concern given the fact that some users have hundreds or even thousands of “friends” that they may know little to nothing about.  Moreover, being able to associate a face with a name would make it easier to gain additional information on individuals, such as an address. 

Once your identity is confirmed, the legal implications are seemingly endless.  Computerworld.com reports that legal service via Facebook, for documents such as paternity and restraining orders, is becoming more popular internationally, in countries such as Canada, Australia, New Zealand and the United Kingdom. Indeed, service via Facebook may soon be acceptable in the United States.  Computerworld.com quoted Joseph DeMarco, co-chair of the American Bar Association's criminal justice cyber-crime committee and a lawyer at New York-based DeVore & DeMarco, as noting that he considered service via Facebook a “useful tool.”  Photographs linked to a user’s account would only serve to strengthen an argument that service was properly perfected.  It will be interesting to see whether Facebook caves to international pressure to turn off the new face-recognition feature as a default setting.  Regardless of the outcome, the proliferation of this type of technology is likely to continue.

Mashable recently reported that a laptop thief was apprehended thanks to the implementation of technology.  Someone stole Joshua Kaufman’s laptop from the Bay Area last week.  Shortly after the theft, Kaufman was able to start a Tumblr blog featuring pictures of the thief.  He obtained the pictures from a security program he installed on his MacBook called Hidden.  The Hidden app allowed him to capture photos of the thief, glean his Google ID and pinpoint his location, all without providing any overt indication this was occurring.  Shortly after Kaufman’s blog began receiving substantial attention, the Oakland Police apprehended the suspect.  Although Hidden only works on Apple systems, other similar programs, such as Prey, work on Windows and Linux machines.

Showing the federal government knows how to use technology, too, the Department of Labor Wage and Hour Division announced this week the release of a new iPhone app to assist workers with tracking their compensable work time.  Read the news release here. I downloaded the app yesterday and it reminds me all too much of the timekeeping software attorneys have been using for years to track their own time.  This one has the potential to be far more dangerous for employers, however, because the app includes such "helpful" tools as a summary of the law on compensable time and the phone number and e-mail address to make a complaint to the Wage and Hour Division.   How big a deal it will be in litigation and DOL investigations remains to be seen.  The theory is that workers can more easily track their time to compare it against their employer's time records.  But just like the timekeeping software attorneys use, you have to remember to turn it on and off for it to do any good.   One unanswered question, what percentage of the non-exempt workforce use iPhones and similar devices anyway and how many are permitted to use them on the job?   It may be a lot if the early iTunes store reviews are any indication.  It already lists a 5-star average rating, with such user comments as "I wish they had this app years ago!" and "I hope we see more like this from the federal government."   What's next, an EEOC app for filing a charge of discrimination on your phone?  The future is here....