The National Hockey League playoffs are underway, and the League is experiencing unprecedented media coverage as a result of the $2 billion dollar contract it signed with NBC last spring.  But with newfound popularity, comes newfound criticism, and the tensions of playoff hockey have only exacerbated the onslaught from both players and pundits.  Most of the commentary has centered on a perceived lack of consistency in officiating and enforcement, and of course, at the center of all of this is the League's concussion problem.  Last week, the League office drew heat after Nashville Predator's Defenseman Shea Weber was not suspended for deliberately slamming the head of Detroit Red Wings Forward Henrik Zetterberg into the glass.  Perhaps heeding these criticisms, the League responded this weekend with a three-game suspension for Carl Hagelin of the New York Rangers, after he elbowed the Ottawa Senators' Daniel Alfredson, causing a concussion.  Some commended the NHL for taking a tougher stance with the Hagelin suspension, but the repercussions handed down have been widely inconsistent.  Given that the League has been beset by concussion concerns with its biggest stars such as Sidney Crosby, and in light of the brewing litigation against the NFL by its former players, the NHL would do well to establish a consistent and strict policy with respect to blows to the head.

Trademark owners agonizing over internet search engine technology and their ability to protect their brand scan step back from the ledge, at least for the moment. The fact that their trademarks may serve important indexing or advertising functions for internet search engine companies, like Google or Bing, does not serve to immunize search engine providers from liability for trademark infringement. On Monday, April 9th, the Fourth Circuit breathed new life into Rosetta Stone’s trademark suit against Google, vacating in large part the Eastern District of Virginia’s 2010decision dismissing Rosetta Stone’s claims against Google on summary judgment. The Fourth Circuit remanded Rosetta Stone’s claims for direct trademark infringement, contributory infringement, and trademark dilution for further proceedings.

Three law firms based in Austin, Texas recently filed suit on behalf of 13 people claiming that almost 20 apps, including Facebook, Foursquare, Yelp and Twitter, violate policies put in place by distributers such as Apple’s App Store, Amazon’s App Store and Google Play.  The American Statesmen reports that the violations are a result of mobile apps “stealing” address book data, such as names, phone numbers, email addresses and even birthdays.  The lawsuit seeks to stop app developers from harvesting data without permission.  The complaint cites an industry publication that claims the information collected could be worth 60 cents to several dollars per contact. 

A New York Times article investigating contact mining recently noted that “the address book in smartphones — where some of the user’s most personal data is carried — is free for app developers to take at will, often without the phone owner’s knowledge.”  The app developers use the data in an effort to expand the number of people using their program.  Developers use email addresses to target potential new customers and to target advertisements.  Several companies, including Path, a social networking site, have issued apologies regarding “how [their] application used your phone contacts.” 

Attorney Richard Newman, an Internet law attorney and managing partner of the Hinch Newman firm, with offices in both California and New York, thinks that the lawsuits are starting to have an impact.  Mr. Newman stated “the mobile communications industry is finding that failing to properly inform consumers of what is happening to their information is increasingly grabbing the attention of regulatory authorities, including the Federal Trade Commission.”  Until a regulatory framework is hammered out to govern emerging data privacy issues, litigation may be one of the only things keeping pace with technology development.  

If you use the Google search engine (and I’m guessing that includes pretty much everyone) you may have noticed a text box appearing on the screen during the past couple weeks, imploring you to read Google’s new privacy disclosures, along with the caveat “this stuff matters.”  That text box stopped appearing on March 1, when Google introduced its new privacy policy.  According to Reuters, at the beginning of the year, Google began reporting that it was simplifying its privacy policy, consolidating 60 guidelines into a single policy that applies to all its services, including YouTube, Gmail and the social network Google+. 

According to the title of a Washington Post article, the “New privacy policy lets Google watch you – everywhere.”  More specifically, the new policy allows Google to track users’ activities by consolidating information it gathers on them across all of the company’s platforms.  Users cannot opt out of the new policy if they want to continue using Google’s services.  A company representative, Alma Whitten, noted that until now, the company has been restricted in their ability to combine YouTube search histories, for example, with other information on a user’s account (email activity).  Although the company claims that it does not sell or trade personally identifiable user information, it now shares usage habits and historical data across all platforms and uses the information to match ads to your online behavior .  Moreover, the fact that Google is gathering so much user specific information on individuals creates the potential for additional privacy implications in the future.  

The National Association of Attorneys General sent a letter to Google signed by 36 members expressing concern about the new policy.  In part, the letter noted:

Consumers have diverse interests and concerns, and may want the information in their Web history to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy.

EU Justice Commissioner Viviane Reding stated that data protection agencies in European countries have concluded that Google’s new privacy policy is in breach of European law.  Given the amount of attention the new privacy policy has generated, it appears as though it’s only a matter of time before the company faces its first significant legal challenge to the policy.  Until then, the digital footprint of all internet users will undoubtedly continue to grow.

Chad Godwin

Attorney

Carr Allison

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.