Category Archives: How the Tech Are You?

Reach out and touch someone… at your own risk! Police can track cell phone emitted GPS data without a warrant

Posted on by
2

Sasha VanDeGrift by Sasha VanDeGrift

For those of you who have followed the Coolidge How the TECH Are You? portion of the blog, you may remember that we blogged earlier this year about an Ohio Appellate Court that held that there is no right to privacy in the data that cell phone providers keep on their customers.

Now, the United States Sixth Circuit Court of Appeals has weighed in on cell phone data, holding that police can track the GPS signal a cell phone emits without a warrant. See United States v. Skinner, No. 09-6497 (6th Cir. Aug. 14, 2012).

In the opening line of the Opinion, Judge Rogers opines that “[w]hen criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them.” The full Opinion is available at the link below.

For the average person, the idea of the police being able to track you using the GPS information your cell phone spits into the air waves might evoke memories of reading the novel 1984 in high school English class or watching a crime drama rerun from last week. But for those involved in illegal enterprises, the Sixth Circuit’s ruling, like emerging technologies, “changes everything. Again.”

http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf

Stay away from my friends: When is a business’s social media friend list a trade secret?

Posted on by
1

Sasha VanDeGrift  by Sasha VanDeGrift

The general rule in Ohio is that for a customer list to be a trade secret, it has to be… a secret. Usually this means that the customer list is stored in a locked drawer or a password-protected server that only a few trusted people can access.

But with the emergence of social media, a friend list may be as or more important than a traditional customer list. But can a business’s friend list be a trade secret just like a customer list?

Christou v. Beatport, L.L.C., No. 10-cv-02912-RBJ-KMT, 2012 U.S. Dist. LEXIS 34307 (D. Colo. 2012) has raised this very issue. Christou owned several nightclubs in Denver that featured electronic house music. Christou employed Bradley Roulier as his talent scout and performance coordinator. Roulier had access to the friend lists.

The relationship between Christou and Roulier soured and Roulier left Christou’s nightclub empire to form a competing music business called Beatport. As former employees sometimes do, Roulier left with information that Christou believed to be trade secrets, including the friend lists.

Christou sued Roulier and Beatport, claiming the friend lists were trade secrets. Beatport moved to dismiss, arguing that the friend lists could not be trade secrets as anyone who accessed Christou’s social media pages could see who Christou’s friend are.

But the court found that the names themselves, readily available to the public, were not the important factor. Rather, by friending a business, the business gained access to the friend’s interests and preferences, contact information, and a built-in means of contact. This information cannot be obtained from outside sources. The court found that Christou could continue the lawsuit against Beatport because the friend lists could plausibly be trade secrets.

The court did not address whether the individual user’s profile is private or public. Facebook in particular has made headlines when privacy settings changed automatically and made formerly private content public. If a user made his/her content public, including the interests and preferences that could be valuable to a business, would that negate the court’s conclusion that the information requires protection because it cannot be obtained elsewhere? Can something be a trade secret when the business cannot control whether the very thing it desires to protect is actually a secret.

On the other hand, a friend list is greater than the sum of its parts. Having lists of thousands of people who have self-identified themselves as potential customers is immensely valuable. In Christou, the friend lists contained thousands of people, some of whom identified favorite DJs, songs, artists, etc., which would help Christou or Beatport learn what music was trending with their primary audience. Even if the customers all made their profiles public, which would make their contact and preference information just as available to Beatport as to Christou, Beatport would have to use its resources to find the profiles. Having a list of those people would save time and money, a fact that might persuade a judge that regardless of whether the profiles are public or private, the information is a trade secret.

Few, if any, courts have resolved these questions. As the court in Christou stated, whether a friend list is a protectable trade secret is an issue of first impression in federal court. Likewise, Ohio courts have not decided this issue. But we are likely to see more litigation on this issue, including the final decision in Christou.

The implication from the court’s decision is that under the right circumstances, a friend list might be a trade secret. Friend lists have business value and have to be treated that way. Make it clear that you do not want anyone other than your people talking to your friends. If your actions do not tell your competition to stay away from your friends, the competition will try to replace you as your friends’ BFF in the industry

In the digital age, justice never takes a holiday…

Posted on by
1

Sasha VanDeGrift by Sasha VanDeGrift

Even when the courthouse is closed on the weekends and holidays, the wheels of justice are still turning.

The Montgomery County, Ohio Clerk of Courts, in keeping with Dayton’s rich history of technological innovation, has an extensive electronic filing system that allows attorneys (and judges) to file documents 24 hours a day, seven days a week, from virtually anywhere on the planet that has a secure internet connection.  Mont. Co. C. P. R. 1.37(IX)(A).  Each electronically filed document receives an electronic stamp that includes the date and time it was filed.  Mont. Co. C. P. R. 1.37(IX)(B). With a keystroke, a judge signs an electronic document “via a digitalized image of his or her signature combined with a digital signature.” Mont. Co. C. P. R. 1.37(VIII)(D)(4). This technology allows judges to decide cases even on days when the court traditionally is closed for business.

But believe it or not, there are people who do not like this development.

In Bank of N.Y. Mellon v. Ackerman, 2nd Dist. No. 24390, 2012-Ohio-956, the common pleas court judge electronically signed a decision granting foreclosure to the bank using the e-filing system even though the courthouse was closed for Veterans’ Day. The couple facing foreclosure appealed the decision, arguing in part that the decision was improper because the judge entered the decision on a court-holiday.  Id. at ¶ 11.

The Second District Court of Appeals disagreed, finding that the common pleas court had no specific time when it was obligated to render decisions and certainly could surrender its holiday to work on cases if the judge so chose.  Id. at ¶ 12-14.  The Second District also found no flaw with the use of an electronic signature.  Id. at ¶ 14.  The couple also never showed how they were arguably harmed by the manner in which the foreclosure decision was filed. Id. at ¶ 14.  The Second District upheld the use of the e-filing technology on a legal holiday, as well as the underlying merits of the foreclosure. (Interestingly, the Second District does not participate in the Montgomery County e-filing system.)

Regular readers of the Coollaw blog, particularly our segment How the TECH Are You, know that there are often negative consequences that arise out of technology’s ever-expanding presence in American life. Sometimes, these consequences require a fresh look at what the law sees fit to protect. But other times, technology puts us one step closer to accomplishing important societal goals, like providing justice that is as efficient as it is fair. Here, a judge used technology –and sacrificed a day off–to do just that.

The couple could ask the Ohio Supreme Court to consider the case, but it seems doubtful that the justices would want to discourage their colleagues on the bench from working overtime to achieve the courts’ raison d’etre.

Occupy Court Street: Tweets Lead to Subpoenas, Charges against Protesters

Posted on by
1

Sasha VanDeGrift  by Sasha VanDeGrift

A quick tweet can help amass hundreds of followers to take action, whether it be to grab some Snapples and head to the park, or to grab a pen and draft a subpoena for three months worth of a Snapple-drinking protester’s tweets.  While the former has been known for months as “Occupy Wall Street,” its legal counterpart could easily be dubbed “Occupy Court Street.”

Fox News just reported that the New York City police are investigating an Occupy Wall Street’s Twitter posts about killing police officers.  The post that sparked the investigation said, “[w]e won’t make a difference if we don’t kill a cop or 2.”  While the user has not been identified, the user posted this comment under the Twitter account “Smackema1.”  NYC police are seeking a subpoena to Twitter to uncover the user’s identity. Read more on this story at http://www.foxnews.com/us/2012/03/19/new-york-police-probe-kill-cop-tweet-linked-to-occupy-wall-street-protests.

The real question is how Twitter will react. In another case, the Manhattan District Attorney’s Office sought a subpoena for tweets from Occupy Wall Street protester Malcolm Harris, who was charged with disorderly conduct related to the Occupy Wall Street protest.  Harris described the subpoena as “a phishing scam, but it’s from the prosecutors.”

The information the Occupy Wall Street subpoenas request is generally the same: they seek the user’s name, address, records of session times, the length of those sessions, the types of devices used to access Twitter, and any IP addresses from which the user connected.  As reported by Reuters, Twitter’s policy when it receives a subpoena for a user’s information is to notify users of the request, unless prior notification is illegal. See http://www.reuters.com/article/2012/02/01/us-protests-twitter-newyork-idUSTRE81003H20120201

For the legal eagles out there who were wondering why the Manhattan District Attorney has used subpoenas rather than warrants to obtain the information, certain federal laws allow police and/or prosecutors to obtain information from social media and telecommunications companies for their users without a warrant.  Some regular Coollaw blog readers may remember that the Second District Court of Appeals recently upheld a decision allowing police to use telephone records against a cell phone user that the police obtained by subpoenaing the cell phone provider.  See “Who You Gonna Call? Your cell phone provider knows…,” posted February 7, 2012.

Occupy Court Street is not limited to Occupy Wall Street protesters. In November 2011, U.S. Federal Court in Virginia ordered Twitter to grant the Justice Department access to non-public account information for three individuals believed to be affiliated with or supporting WikiLeaks.

http://www.readwriteweb.com/archives/twitter_wikileaks_online_privacy_implications.php

Much like Occupy Wall Street, Occupy Court Street has its detractors. Some privacy commentators have voiced concerns about police and prosecutors having the power to gather communications data so easily. Despite that, so far, Occupy Court Street appears to be here to stay.

“Say You’re Sorry or Go to Jail”: One Judge’s Unique Approach to Facebook Harassment

Posted on by
1

Sasha VanDeGrift by Sasha VanDeGrift

Mark Byron of Hamilton County, Ohio, recently learned that even people who cannot access the private section of his Facebook page knew what he was posting about them, including his soon-to-be-ex-wife Elizabeth Byron.

That proved to be a problem for Bryon. Byron’s divorce from Mrs. Byron, pending before the Hamilton County Domestic Relations Court, has been a contentious one. The couple has fought over issues related to their young son, including visitation. Mrs. Byron accused Byron of verbally abusing and threatening her, causing the Magistrate to issue a protective order against Byron. The protective order barred Byron from causing his wife “mental abuse, harassment, [or] annoyance.”

Byron, upset that Mrs. Byron had accused him of being verbally abusing and threatening her, wrote on his Facebook wall: “…if you are an evil, vindictive woman who wants to ruin your husbands [sic] life and take your son’s father away from him completely – all you need to do is say that you’re scared of your husband or domestic partner…” The Magistrate found that this post violated the protective order and held Byron in contempt.

Byron’s punishment? Byron could choose between spending time in jail or posting a court-approved apology to Mrs. Byron on Facebook everyday for 30 days. Understandably, Mr. Byron chose to apologize. His apology can be seen on the public portion of Byron’s Facebook page (http://www.facebook.com/byronphoto).

The Magistrate also ordered Byron to pay over $1,000 in back child support and Mrs. Byron’s attorneys’ fees. Byron likely incurred a significant amount of his own attorneys’ fees in the process.

The Judge adopted the Magistrate’s ruling, a requirement to make the ruling an order. Byron appealed the decision to the First District Court of Appeals in Cincinnati, Ohio. The appeal may take several months to be decided. In the meantime, Byron has another court date set for March 19, 2012 before the Magistrate.

Naturally, this case has sparked a debate about whether the Court actually has the power to force someone to apologize, particularly in such a public forum as on a social media site. Critics of the ruling argue that requiring Byron to choose between apologizing and sending time in jail violates the First Amendment. Proponents of the ruling say that social media harassment has become such a problem that this type of punishment may be the only real deterrent to future incidents.

Regardless of whether a court-ordered apology is an appropriate punishment for Byron’s conduct, Byron could have avoided getting himself into trouble had he not posted what he did on Facebook. Part of what makes this case interesting is that Byron had unfriended his wife at some point before he made this post. But somehow, the wife found out about Byron’s post anyway.

While some have speculated that Mrs. Byron deliberately sought to find negative information on Byron’s Facebook posts, it is also possible that mutual Facebook friends who have not yet been divided in the divorce told Mrs. Byron about the post. Either way, although Mrs. Byron was not intended to ever view the post, she did, as now half of the United States has.

For more on this story, see the Cincinnati Enquirer’s story: http://news.cincinnati.com/article/20120222/NEWS010702/302210147/Judge-Jail-Facebook-rant.

It cannot be said enough times: be careful with social media. It is a useful tool, just like a chainsaw. If used appropriately, it can help remove large obstacles from your path. If used with wanton abandon, it can end up costing you an arm and a leg.

Who You Gonna Call? Your cell phone service provider knows…

Posted on by
Reply

Sasha VanDeGrift by Sasha VanDeGrift

Think all that data cell phone service providers collect on their customers stays private? Think again…

Recently, the Second District Court of Appeals held that cell phone customers have no reasonable expectation of privacy in records maintained by their cell phone service providers. State v. Neely, 2nd Dist. No. 24317, 2012-Ohio-212. (For the full Opinion, please see the following website: http://www.sconet.state.oh.us/rod/docs/pdf/2/2012/2012-ohio-212.pdf .)

In Neely, the defendant was indicted for trafficking in cocaine based on the records from his service provider, including:

1) his identity;
2) all of his incoming or outgoing calls; and
3) the duration of those calls.

The defendant moved to suppress that evidence, citing to State v. Smith, in which the Ohio Supreme Court held that the police may not search a person’s cell phone without a warrant, even if the person is lawfully under arrest, absent exigent circumstances such as risk to the officer’s safety or imminent destruction of evidence. State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949. The defendant in Neely argued that the Smith case mandated the cell phone records from his service provider be suppressed as well.

The trial court disagreed. The reason? The prosecution followed the procedure set forth by the Electronic Communication Privacy Act, 18 U.S.C. § 2703(c)(1)(B) and obtained a lawful court order for the defendant’s cell phone records from his service provider. In essence, having a court order was analogous to having a warrant.

On appeal, the defendant argued that the Fourth Amendment gave him a privacy interest in his service provider’s records. The Second District flatly rejected this argument, indicating that the United States Supreme Court has taken “pains to reject the claim that persons have a reasonable expectation of privacy in the numbers that they dial from their phones.” The Second District pointed out that the public generally knows that service providers maintain numerical information on customers’ cell phone usage for a variety of legitimate business purposes. Accordingly, “it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”

Ultimately, the Second District upheld how the prosecutor obtained the cell phone records and the defendant’s conviction. The Second District remanded the case for the sole purpose of having the trial court re-determine the court costs that the defendant was obligated to pay.

Now, while the Second District has spoken, the Neely case may not be over. The defendant in Neely could ask the Ohio Supreme Court to review the Second District’s opinion. It remains to be seen whether the Ohio Supreme Court will find the defendant’s privacy arguments to be matters of great enough public concern to justify accepting the case for review.

While Neely is a criminal case, it serves as a good reminder for all of us that we can never assume that any information known to others is “private.”

So, who are you going to call now?

Interesting article on how Twitter is changing media law

Posted on by
Reply

Sasha VanDeGrift by Sasha VanDeGrift

This article does a nice job of highlighting some of the legal issues that can arise out of a 140-character message on Twitter. Sometimes, saying less can get you into more trouble…

Here are five examples that show how Twitter’s unique platform is creating a new set of media rules that are forcing the law to play catch up.

Fired for “Pants on Fire”: When Lies, GPS, and Employee Handbooks Meet

Posted on by
6

Sasha VanDeGrift by Sasha VanDeGrift

One of the staples of the little kid lexicon is the expression “liar, liar, pants on fire!”  While there appears to be no direct correlation between flaming trousers and someone taking liberties with the truth, there does appear to be a common correlation between lying at work and getting fired.  It might have something to do with employers thinking that if they pay someone, they should be able to trust his or her word.  Silly employers!

Even employers in significant positions of public trust occasionally find their employees’ britches burning.  Case in point: Philip Mordick v. City of Dayton.  In Mordick, the City of Dayton fired Mordick, a police officer, after he filed a false report of his whereabouts while he was on patrol.  Mordick, 2nd Dist. 24663, 2012-Ohio-289 (for the full text of the Opinion: http://www.sconet.state.oh.us/rod/docs/pdf/2/2012/2012-ohio-289.pdf). 

Officer Mordick probably should have realized that his lie was likely to be discovered: he filed the false report in front of another officer, Officer Cash, while they were in the same police cruiser.  When Officer Mordick left the cruiser, ostensibly looking for his wayward girlfriend, Officer Cash contacted their sergeant and informed him that she and Officer Mordick were not at the location that Officer Mordick had reported.  The sergeant verified Officers Mordick and Cash’s location by tracking the cruiser’s GPS unit, confirming that Officer Cash was telling the truth and Officer Mordick had lied. 

When Officer Mordick returned to the cruiser, he called the sergeant, who asked Officer Mordick where he really was.  Officer Mordick admitted his true location.  Then, Officer Mordick drove to the location where he had falsely claimed to be. 

The City of Dayton charged Mordick with several violations of the Civil Service Rules and Regulations (the “Regs”) (basically the employee handbook for the City of Dayton police), including Rule of Conduct 8.5, which specifies:

No officer will knowingly falsify any report, document, or record or cause to be entered any inaccurate, false, or improper information on records, documents, or reports of the Department or of any court or alter any record, document, or report except by a supplemental report, document, or report. If an investigation reveals that an officer has violated this section, their employment with the Dayton Police Department will be terminated.

The City of Dayton found that Officer Mordick had violated the Regs and terminated his employment.  That decision was affirmed by the Civil Services Board, the Montgomery County Common Pleas Court, and now by the Second District Court of Appeals.

Most “pants on fire” cases are not this clear-cut.  More importantly, not all policies plainly state that “if you lie about X, we will fire you.”  The takeaway:

  • For employees: lying at work is a bad idea, especially in front of a witness and in a GPS-equipped vehicle.
  • For employers: when the evidence is clear that an employee was lying and you have a very carefully drafted policy specifying that the particular type of lie is grounds for termination, that is strong evidence in favor of termination.  It might seem a little late in the year for New Year’s Resolutions, but it is always advisable to dust off the employee handbook and give it a fresh read. 

Honesty is always the best policy, especially when that policy is clearly spelled out in writing…