By now, stories about social media website users revealing too much about themselves on their personal sites are widespread—from disgruntled employees getting into trouble for tweeting their dissatisfaction with their jobs to entire websites devoted to mocking parents’ inappropriate Facebook posts about their children. But according to the Federal Trade Commission (FTC), lately it’s the social media website operators themselves who have been oversharing. Over the past two years, many of the major players in social networking have entered into agreements with the FTC in order to ensure compliance with federal law (and the sites’ own published privacy policies) regarding maintaining the privacy of user information. Many of the problems have stemmed from the sites’ sales of user information to advertisers.

The most recent site to enter into such a proposed agreement is Myspace. The FTC alleged that Myspace had breached its own user privacy policy, which promised that the site would not share site users’ information (including tracking of other websites users visited) with advertisers. Specifically, the FTC claimed that Myspace had transmitted users’ internal identification numbers, ages and genders to advertisers in violation of a privacy policy promising users that Myspace would not share personally identifiable information with third parties unless the user had authorized Myspace to do so. Although Myspace did not admit liability in agreeing to the settlement with the FTC, it has agreed to submit to biannual audits of its practices for the next 20 years. In a statement, Myspace, which was acquired by California-based advertising group Specific Media and musician Justin Timberlake in June 2011, reiterated its commitment to ensuring users’ privacy in the wake of the acquisition, and noted that much of the conduct at issue had occurred prior to the acquisition. The settlement agreement still must be formally approved by the FTC, and will remain open for public comment until June 8, 2012.

Myspace is not the first, and may not be the last, social media site to enter into a user privacy-related settlement with the FTC. In November, 2011, Facebook entered a similar agreement, with the same 20 year biannual audit schedule. Google also agreed to similar reviews following the FTC’s concerns over user privacy relating to Google Buzz. In 2010, Twitter entered into a ten year audit agreement.

Although the audit schedule may appear burdensome, the threat of legislation relating to formal privacy policies has in many cases been sufficient to encourage agreements for self-policing privacy policies between social media sites and the FTC. However, regardless of the sites’ willingness to compromise with the FTC, social media consumer privacy legislation may still be on the horizon—an FTC report issued in March 2012 recommended that Congress enact privacy legislation, and the Obama administration also proposed a consumer privacy plan in February. Irrespective of the policing method used, however, it is clear that social media privacy is a matter of increasing concern to the FTC, and it’s no longer just the social media users who should be concerned about what they share.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Sources:

Edward Wyatt, New York Times, “F.T.C. Charges Myspace With Breaking U.S. Law in Sharing Users’ Personal Information,” May 8, 2012, available at  http://www.nytimes.com/2012/05/09/technology/myspace-agrees-to-privacy-controls.html.

Jasmin Melvin, Thomson Reuters News & Insight, “Myspace Settles FTC Charges Over Privacy,” May 8, 2012, available at http://newsandinsight.thomsonreuters.com/Legal/News/2012/05__May/Myspace_settles_FTC_charges_over_privacy/

In a May 8, 2012 ruling by the U.S. Court of Appeals for the Federal Circuit, Facebook Inc. was successful in showing invalidity of a patent on collaborative communication software owned by Leader Technologies, Inc. (Leader Technologies Inc. v. Facebook Inc., Fed. Cir., No. 2011-1366, 5/8/12).

The court affirmed findings that the patent owner offered a product covered by the patent for sale and in public use more than one year prior to applying for the patent, thus invalidating the patent under U.S. patent laws – the so-called “on-sale bar” to patenting.

At issue in the case was whether early versions of the software product that were sold embodied the patented technology (it was acknowledged that the software underwent several source code changes after the original version), when Facebook offered no evidence of such based on expert testimony, source code, or system schematics.

Leader Technologies Inc. is the developer of a software product named “Leader2Leader,” a web-based collaborative software product that uses their “LeaderBoard engine,” that was first offered for sale some time in 2001.  Leader did not get around to filing a provisional patent application for the software until Dec. 11, 2002, and that proved to be its undoing.  (U.S. Patent No. 7,139,761 eventually issued in 2006).

Inconsistent Testimony from Leader’s Founder

In 2008, Leader optimistically sued Facebook for patent infringement in the U.S. District Court for the District of Delaware, alleging that Facebook’s web site infringed Leader’s patent and that Leader was entitled to millions of dollars in damages.  However, Leader encountered problems at trial stemming from inconsistent testimony provided by its founder.  In both a deposition and a response to a written interrogatory from Facebook, founder Michael McKibben said that the ‘761 patent claims covered the LeaderBoard engine as offered in 2001-2002.  However, at trial,  McKibben back-pedaled, testifying before the jury that the earlier versions of LeaderBoard did not encompass the patented technology.  Facebook made much of McKibben’s inconsistent deposition testimony before the jury.

The jury concluded that the ‘761 patent was invalid for being on sale and publicly used more than one year prior to the patent application filing date, nullifying Leader’s claim against Facebook.  Leader appealed this finding to the Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdiction in patent matters.

Facebook Offered No Evidence that the Software Sold Embodied the Patented Invention

Facebook offered no evidence, based on expert testimony, source code, or system schematics, that the early versions of the software product that were sold embodied the patented technology.

Leader’s position was that Facebook had to show by clear and convincing evidence that the earlier versions of the Leader2Leader software fell within the scope of the patent claims.  Leader argued that the only evidence available to the jury was McKibben’s discredited testimony, and it could not be used as affirmative evidence that the earlier versions of the software were covered by the patent, and that the patent was therefore invalid under the on-sale bar.  Writing for the court, Judge Alan D. Lourie, however, found that the following facts, when considered in the light of the contradictory testimony, provided “the minimum quantity of evidence to support the jury’s verdict”:

1. The interrogatory responses clearly indicated that the LeaderBoard engine “embodies” the asserted patent claims.

2.  McKibben’s deposition testimony was that he “could not identify a single instance of Leader2Leader that did not fall within the scope of the ‘761 patents’ claims.”

3. A 2002 offer for sale by Leader described the product as “fully developed” and “operational.”

4.  The co-inventor on the patent testified at trial that invention was conceived in 1999 and then Leader immediately started to implement the patented technology and completed the project within “a couple of years … [m]aybe three.”

The court therefore found that the record contained substantial evidence that the early version was covered by the patent.  “At a minimum, McKibben’s lack of credibility fortifies that conclusion and provides an independent basis for disbelieving his factual assertions,” Judge Lourie stated.  The court concluded that “the jury was entitled to disbelieve [McKibben's] transparently convenient assertion in light of all the evidence before them.”  It therefore affirmed the lower court’s decision.

The Take-Away

Leader could have avoided all of this trouble, and possibly walked away with a judgment against Facebook worth millions of dollars, if they had simply filed their patent application sooner in the development process.  Technology-driven companies need to keep their patent attorney involved in the product development cycle, so that patentable inventions can be timely identified, evaluated, and patents applied for before any commercial activities unintentionally cut off the ability to protect the company’s valuable R&D investment.

As we say at Ice Miller, It’s a Complex World.  Be Advised.^SM

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Late April 2012, Mark O’Mara launched an unprecedented social media campaign to defend his client, George Zimmerman, in the court of public opinion.  Zimmerman, 28, faces a second-degree murder charge in the shooting death of 17-year-old Trayvon Martin.  He has pleaded not guilty and claims self-defense.  The social media firestorm surrounding this case, however, began raging before Zimmerman’s arrest. 

An online petition, launched by Martin’s parents, calling for Florida’s 4th District State’s Attorney to investigate and prosecute Zimmerman launched the case into the national spotlight.  The petition became the fastest-growing petition in Change.org history.  Twitter users, including prominent NBA players, adopted hooded avatars and used #hoodie related hashtags as a sign of solidarity with Martin.  Rep. Bobby Rush (D-IL) was escorted off the House floor for wearing a hoodie in support of Martin’s cause.  California attorney and legal ethicist John Steele further perceives that cable television coverage of the case is slanted against Zimmerman.

O’Mara launched a website, Facebook page, and Twitter account devoted to discrediting fake websites and social profiles claiming to be Zimmerman, disputing misinformation, and discouraging speculation.  In his introductory blog post, O’Mara wrote that “social media in this day and age cannot be ignored.  It is now a critical part of presidential politics, it has been part of revolutions in the Middle East, and it is going to be an unavoidable part of high-profile legal cases, just as traditional media has been and continues to be.” 

O’Mara has indicated that social media will be his tool for responding quickly and efficiently to “misinformation” about his client and the case.  St. Louis attorney Michael Downey, who has written extensively on ethics issues, states that it is “a legitimate role of a lawyer [to protect his] client’s reputation in the public eye.”  Marcus Messner, assistant professor at Virginia Commonwealth University’s School of Mass Communications and an expert on social media, feels that although O’Mara’s social media presence may be belated in comparison to that generated by the Martin family, it is still a smart one.  “In many people’s views, George Zimmerman is guilty, even without a trial.  This of course has to do with the circumstances of this case, but also with his side’s communication strategy so far.  Messner notes that “[i]t’s a common practice for lawyers to make public statements in defense of their clients.  Moving them now to social media is a sign of the times.  It allows the legal team to present its views without media filters.”

This brand of direct-to-the-public legal marketing is not without risks.  The American Bar Association Model Rules of Professional Conduct proscribe certain forms of advertising by attorneys for their legal services.  O’Mara’s online activity on behalf of his client may be viewed as an attempt to promote his practice.  If considered advertising, it would be difficult to make the “ads” comply with the ethics rules.  Furthermore, O’Mara’s media blitz may seem opportunistic in the eyes of the public.  O’Mara recognizes this criticism and states that “if the controversy surrounding this matter subsided tomorrow, so would our efforts to address the perceived problems the way we feel is necessary.”

Lawyers are further prohibited from making public statements that could compromise a fair trial.  O’Mara, however, made clear on the website that the defense team “cannot and will not comment about the facts of the case, as that is the purpose of the courts and legal process.”  He argues that part of his presence online “is to discourage public speculation about the facts of the case”—that the defense team is in a position to distinguish fact “from the rest.”  But isn’t that the ambit of judge or jury?  On the other hand, one could argue that, with so much publicity surrounding the case already, what could O’Mara say at this point that would taint the jury pool any more than it has been tainted?  Justice Anthony Kennedy opined, in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), “[e]mperical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it and base their verdict upon the evidence presented in court.”

Ultimately, whether O’Mara’s media blitz will compromise Zimmerman’s right to a fair trial or unduly taint the jury pool will be left to the judge to decide.  Seminole County Circuit Judge Kenneth Lester Jr. issued a written order on April 30, 2012, which stated that there is no need for a gag order on O’Mara, but warned that one could be imposed if attorneys in the case say or write anything prejudicial. 

Despite the effect of the seemingly endless stream of social media on the court of public opinion, it is important to keep in mind that the ultimate ruling on this case should – and will – occur in a court of law.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Google released its new cloud-based backup service named Google Drive on April 24, 2012. Google Drive marks the company’s entrance into an already crowded cloud-based storage market with players such as Dropbox, iCloud, SkyDrive, and Ubuntu One. Nevertheless, Google’s entrance into the arena has prompted knee-jerk privacy concerns from bloggers and users due to Google’s over-arching Terms of Use and Privacy Policy for its products. Namely, consumers are concerned that documents and files uploaded to Google Drive may be misappropriated by Google for other purposes.

The section from Google’s Terms of Use that is drawing concern is as follows:

“When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content.”

At first blush, this section of Google’s Terms of Use states that Google may take files you upload to Google Drive and release them to the public, create derivative works from such files, and otherwise communicate the files publicly regardless of any privacy settings you have set. Nevertheless, Google’s Privacy Policy curbs this issue by stating that Google only shares information and content you provide for a set of limited purposes and that Google will “ask for your consent before using information for a purpose other than those that are set out in [Google's] Privacy Policy.”

This language effectively mimics language from other providers in the same market. For example, Dropbox’s Terms of Use state the following:

“To be clear, aside from the rare exceptions we identify in our Privacy Policy, no matter how the Services change, we won’t share your content with others, including law enforcement, for any purpose unless you direct us to.”

In another example, Apple’s iCloud Terms of Use state the following:

“[B]y submitting or posting such Content on areas of the Service that are accessible by the public or other users with whom you consent to share such Content, you grant Apple a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available, without any compensation or obligation to you.”

Cloud-based storage providers appear to want to provide a product that consumers can trust. In addition to the forgoing language surrounding sharing content and files you upload, almost every cloud-based storage provider mentions that the provider takes steps to secure content you upload. Nevertheless, the security of information and files uploaded to these products may not be the only privacy concern for its users.

Google Drive presents a unique privacy concern through its potential for targeted advertisements based on content you upload to the service. In addition to the section quoted above from Google’s Privacy Policy, the following language is included:

“We also use [information we collect] to offer you tailored content – like giving you more relevant search results and ads.”

Although Google’s Privacy Policy notes that Google may not share content you upload to Google Drive publicly without your consent, the Privacy Policy seems to provide for a practice in which Google could scan content you upload in order to provide you with targeted advertisements. For example, if you upload a presentation to Google Drive that includes a market analysis of potential vendors to choose in a project, it appears that Google’s Privacy Policy would allow Google to scan such content and offer you ads that direct you to a vendor who paid for advertisement placement.

However, users should understand that this practice by Google is not new. Gmail users may remember targeted ads within emails directing the user to websites based in part on the body of the email. Google search users may recall the use of AdWords and Sponsored Links directing the user to websites based on search terms. Google’s business model for its free products appears to revolve around providing users with the most relevant advertisements to the user possible, and this is achieved through targeted advertisements based on the specific user’s use of Google’s products.

In sum, companies using Google Drive, iCloud, Dropbox, and other cloud-based storage providers may wish to understand how content stored within such providers is secured from the public and what, if any, ways each cloud provider may use stored content for purposes outside of the product’s core functionality. For example, would Google’s potential practice of scanning content uploaded to Google Drive impact standing confidentiality obligations through contract between businesses?

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Nick Merker, an associate in the Litigation and Intellectual Property Group at Ice Miller, recently presented on the topic of Privacy Trends at the 2012 Notacon Conference.

Notacon is a weekend long event featuring three tracks of discussions and presentations, workshops and performances. Spaces are dedicated to hardware hacking and hackerspaces, video and tabletop games, amateur radio and Notacon Radio streaming.

Nick spoke on the issues he sees today with privacy laws and regulations within the United States. Specifically, touching upon how the awkward state of the law is causing businesses generally to react in a consumer-unfriendly way, with examples to Privacy Policies and data breach that try to comply with the law without telling the consumers what they want to know.

Nick is a Certified Information Privacy Professional/Information Technology. You can watch his complete presentation on YouTube below.

Nick Merker, Notacon Presentation

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

In March 2012, the Federal Trade Commission issued a final Report intended to articulate best practices for companies that collect and use consumer data and to assist Congress in considering privacy legislation.  The report, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers, follows a preliminary staff report issued in December, 2010, which proposed a framework for protecting consumer privacy in the 21^st century. 

In response to the preliminary report, the commission received over 450 public comments from businesses, privacy advocates, technologists and individual consumers, which are addressed in the revised privacy statement set forth in the final Report.  First, the final Report alters the scope of the recommendations, excluding companies that collect only non-sensitive data from less than 5,000 consumer per year, so long as that data is not shared with third parties. Second, rather than providing specific data categories, the final Report states that companies do not need to provide choice before collecting and using consumers’ data for “practices that are consistent with the context of the transaction, consistent with the company’s relationship with the consumer, or as required or specifically authorized by law.”  Finally, agreeing with commentators that consumers should have more control over the practice of information brokers, the FTC “believes that appropriate legislation could help address this goal,” including a procedure for consumers to access and dispute personal data held by information brokers. 

The final Report urges industry to move forward with self-regulatory measures while Congress considers privacy legislation.  Specifically, the Report articulates three “best-practices”: 1) Privacy by Design, building privacy into every stage of product development; 2) Simplified Choice for Businesses and Consumers, giving consumers the ability to make decisions about their data; and 3) Greater Transparency, making information collection and use practice transparent.

According to the Report’s executive summary, FTC staff will promote the framework’s implementation by focusing its policy-making efforts on five main areas:

• Do Not Track.  The FTC will work with Digital Advertising Alliance and World Wide Web Consortium to implement an “easy-to use, persistent, and effective” Do Not Track system.
• Mobile.  The FTC has initiated a project to update online advertising disclosures for companies providing mobile services.  The FTC will host a workshop in May 2012 to address mobile privacy disclosures. 
• Data Brokers.  To increase visibility and consumer control, the FTC supports targeted legislation that would provide consumers with access to information about them held by a data broker.

Large Platform Providers.  The FTC intends to host a public workshop in the second half of 2012 to explore privacy and other concerns related to large platforms such as internet service providers, operating systems, browsers and social media. 

• Promoting Enforceable Self-regulatory Codes.  FTC staff will participate in a project undertaken by the Department of Commerce to facilitate the development of sector-specific codes of conduct. 

The Report was approved by a 3-1 vote, with Commissioner J. Thomas Rosch dissenting. While the Report is intended to provide guidance to companies and Congress, it is not intended to serve as a template for law enforcement actions or regulations under laws currently enforced by the FTC.    

For more information regarding compliance with FTC regulations or for more specific information on the proposals contained in the FTC’s Report, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Business and Policymakers, contact info@theiceloop.com. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

A large Canadian juice company recently felt the effects of a social media firestorm resulting from publicity surrounding the company’s lawsuit alleging trademark infringement against a small business owner.

Quebec-based Lassonde Industries, Inc. is a well-known juice company popular for its “Oasis” brand of juices. In 2005, Lassonde commenced trademark infringement litigation against Deborah Kudzman, owner of a small business that sells a line of olive oil-based beauty products known as “Olivia’s Oasis.” Although the litigation went on for nearly seven years without significant press or backlash, it only took a matter of hours on Saturday, April 7, 2012 for social media sites such as Facebook and Twitter to begin buzzing with mostly negative comments—directed at Lassonde—after reports about the lawsuit appeared in the press. For instance, a host of a popular Quebec television program Tweeted on Saturday, “That’s it, I’m not drinking Oasis juice anymore. My way to protest.”

By Sunday, Lassonde announced its intent to settle the case in a press statement, saying that, “Lassonde has listened to the consumers and has decided to take a positive step in reaction to their remarks.” Although most details of the settlement remain obscured, Lassonde has indicated that it will reimburse Deborah Kudzman for her legal expenses relating to the lawsuit. The settlement is especially surprising in light of a previous Court of Appeal ruling in the case overturning the trial court’s ruling in favor of Kudzman and granting her $25,000 in punitive damages and awarding her $100,000 for her legal fees. The Court of Appeal found that Lassonde’s attempt to protect its mark was not abusive.

Lassonde’s PR debacle is only the latest instance in the growing trend of the use of social media to sway public opinion in trademark infringement disputes. For example, USA Today recently reported on a dispute between Chick-fil-A and entrepreneur Bo Muller-Moore over whether Muller-Moore’s attempt to trademark his business catchphrase “Eat More Kale” infringed upon Chick-fil-A’s well-known slogan “Eat Mor Chikin.” Muller-Moore has resorted to his Facebook and Twitter accounts to garner support for his position, amassing more than 29,000 signatures on his online petition requesting that Chick-fil-A halt its efforts to oppose his trademark application.

Wide access to and use of social media has given small business owners like Kudzman and Muller-Moore a platform to which they did not have access in the past, and larger companies are now faced with a key tactical question when assessing the decision to enforce their marks: what is the PR risk?

Ice Miller advises its clients regarding trademark infringement and other intellectual property disputes. For more information, contact info@theiceloop.com.

Sources

White, Marianne, Vancouver Sun, “Quebec juice maker Lassonde forced to settle lawsuit after online backlash,” April 9, 2012, available at http://www.vancouversun.com/life/fashion-beauty/Quebec+juice+maker+forced+settle+lawsuit+after+social+media+storm/6431597/story.html.

CBC News, “Oasis juice settles trademark fight amid consumer pressure,” April 9, 2012, available at http://www.cbc.ca/news/canada/montreal/story/2012/04/09/oasis-quebec-trademark-battle-settlement.html.

Petrecca, Laura, USA Today, “Social media changes fights over trademarks,” March 12, 2012, available at http://www.usatoday.com/money/smallbusiness/story/2012-03-12/trademark-bullies-entrepreneurs-fight-back/53503218/1.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

In the era of social media, the traditional interview—where an applicant prepares a resume and attends an interview, an employer inquires about the applicant’s qualifications, and the applicant reenters her social experience upon exiting the interview—is a relic of the past.  It is now common practice for employers, in an effort to vet potential employees, to review publicly available Facebook profiles, Twitter accounts, and other social networking sites.  As Facebook users alter their behavior to make their profiles less public, the Associated Press recently reported that potential employers have requested Facebook or other social media passwords in order to view applicants’ private profiles.  In fact, according to the Chicago Tribune, of more than 2,600 hiring managers surveyed by CareerBuilder in 2009, 35 percent had rejected candidates after finding objectionable material on social media sites, including photos of them using drugs, bad mouthing previous employers, and lying about their qualifications.  Not to mention, the Chicago Tribune also reported that in a 2011 survey of companies that screen applicants for social media sites, 73 percent said they don’t give the applicants a chance to explain questionable information. 

This practice is even more prominent among public agencies, such as police departments and 911 dispatchers.  Lisa Holland of the Roswell, Ga. Police Department, stated March 29, 2012 that the department has long required prospective employees to open up their Facebook, Twitter and other social media websites during the interview process.  “Police officers are held to a higher standard, so [police departments] don’t want any gang activity, underage drinking, anything criminal related on somebody’s Facebook page,” stated Holland.  Similarly, the Virginia State Police requires all applicants to sign into Facebook, Twitter, and any social networking site to which they regularly post information in front of an administrator.  A spokeswoman for the Virginia State Police noted that it’s “a virtual character check as much as the rest of the process is a physical background check.”

Facebook released a written statement on March 23, 2012, denouncing the practice of employers demanding the social networking passwords of applicants and threatening legal action to prevent it. Erin Egan, Facebook’s chief privacy officer for policy, stated that, “in recent months we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. . . . The practice undermines the privacy expectations and the security of both the user and the user’s friends.”  Facebook also maintained that sharing or soliciting a Facebook password is a violation of its Statement of Rights and Responsibilities.  “As a user, you shouldn’t be forced to share your private information and communications just to get a job,” Egan stated.  “And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job.”

ACLU Legislative Counsel Chris Calabrese recently joined the debate, stating that, “Congress should pass legislation prohibiting any employer or school from accessing your private social networking information.  It’s an egregious privacy violation, comparable to poking around in your house or reading your personal e-mail.”

Representative Ed Perlmutter (D-Colo.) answered the call by proposing an amendment to H.R. 3309, the Federal Communications Commission Process Reform Act of 2012.  According to The Atlantic, the amendment would have prohibited employers from demanding workers’ social networking usernames and passwords and would have allowed the FCC to intervene on behalf of employees and their privacy.  On March 27, 2012, the amendment was struck down—almost entirely down party lines.  Although Senators Charles Schumer (D-N.Y.) and Richard Blumenthal (D-Conn.) have also joined the debate, by calling on the Department of Justice to determine whether an employer’s request for an applicant’s social media passwords violates the Stored Communications Act or the Computer Fraud and Abuse Act and by bringing the matter to the attention of the Equal Opportunity Commission, it is looking as if, at least for now, these concerns will be dealt with by the courts.  Courts will have to consider the nature of Facebook and how a user’s expectation of privacy in her Facebook account differs from the expectation of privacy she has in her home, in her postal mail, or even in her person.

Even though courts have yet to hash out the legal implications of employers checking social network posts, employers should tread carefully in this uncharted arena, as this behavior may potentially open them up to both privacy and discrimination lawsuits.  Applicant profiles likely reveal the applicant’s race, gender, disability, or other federally protected status.  Indeed, federal protection also extends to relationship status—a class of information that is often readily available on Facebook. 

Pam Dixon, executive director of the World Privacy Forum, also opines that this type of employer behavior chills free speech.  “If everyone thinks that to get a job they have to have a perfectly clean social networking site, no one will say anything to anyone.”  Finally, Catherine Crump, staff attorney with the ACLU, noted that, “when the government is the employer, people have the constitutional right not to be subjected to unreasonable searches” – intimating that if a potential government employer asks you to reveal your social media passwords, he might be violating your Fourth Amendment rights.

In this new frontier, our private thoughts are increasingly public and our “home” is no longer simply the place we live, but the digital space we call our own.  Accessing applicants’ private  information puts employers in a legal gray area.  While potential applicants should be aware of what they include on their social media pages, employers who use social media to conduct background checks may be “playing with fire.”

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Recently three Ice Miller attorney’s Judy Okenfuss, Ryan Poor and Adam Arceneaux participated in a panel discussion to a local Young Presidents Organization on crisis management and how to prepare for the unexpected. This was met with a lot of questions and conversation as the young business owners started to evaluate the plans they currently have in place for handling a tragic event within their company.

Following these critical conversations and questions our attorneys felt it would be helpful to develop the following checklist to help prepare for the unexpected. You can link directly to the article on Ice Miller’s web site here.

____________________________________________________________________________

A workplace accident resulting in fatality. A mass exodus of key employees. A flood. A tornado. 

A crisis can hit any business. At any time.

How does one prepare for the unexpected?

While one cannot predict the nature or timing of a crisis, each business can develop a crisis management plan, which will serve as the framework for dealing with a crisis when one arises.

Elements of a good crisis management plan should take into consideration:

·         Who is in charge, and who is on the crisis management team reporting to that person?

·         What is the plan to secure the safety of employees and the custody of evidence?

·         How will communications be handled, both internally and externally?

·         Where is the insurance coverage and is it sufficient?

·         When will appropriate governmental agencies be involved?

·         Why did it happen, and who should conduct the investigation?

Within the answers to these questions lie a bevy of details which comprise a carefully constructed crisis management plan. That framework can provide your business direction in the face of chaos.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

The United States Patent and Trademark Office (USPTO) announced on Feb. 8, 2012 that a new competition has been launched to allow patent owners and licensees to pageant their technology in front of a panel of judges for the chance to win a “special” prize.  This voluntary competition, known as Patents for Humanity, is a twelve-month pilot program designed to reward patents that address public health or quality of life issues faced by an impoverished population.  Applications will be accepted from March 1, 2012, through August 31, 2012.  The judges will be selected from researchers in academia with backgrounds in the sciences and public policy to review the applications on humanitarian technology. 

The humanitarian technology will be assessed in four categories:  Medical, Food and Nutrition, Clean Technology, and Information Technology.  Some examples of eligible humanitarian technology include life-saving medical diagnostic equipment, life-saving medicines and vaccines, more nutritious or heartier crops, cleaner sources of household light and heat, information devices promoting literacy and education, food storage and preservation technology, water sterilization devices, mosquito control, and land mine detection.  Each application must involve technology that is the subject of one or more claims in an issued or pending U.S. utility patent.  To take part in this competition, applicants must demonstrate in five pages or less that their technology addresses either a humanitarian use or humanitarian research.  More specifically, an applicant addressing a humanitarian use must show that their technology addresses a humanitarian issue, it targets an impoverished population, and makes a positive impact on that population.  Whereas, an applicant addressing humanitarian research must show that their technology significantly impacts research conducted by others, the technology is in an area lacking significant commercial application, and the applicant is taking actions to make the technology available to other researchers.   

A panel of three judges will review the first 1,000 applications submitted.  The program emphasizes that the judging process is impartial and fair because the judges perform their reviews independently.  The program also ensures that the review is technologically, geographically, and financially neutral and focuses only on the ultimate humanitarian outcome. Based on the judges reviews, a selection committee of Federal employees from various agencies and laboratories will choose 50 applicants as winners.  These winners will receive public recognition at an award ceremony at the USPTO and an acceleration certificate.  This certificate can be used to accelerate one of the following: 1) an ex parte reexamination proceeding, including one appeal to the Board of Patent Appeals and Interferences (BPAI); 2) a patent application, including one appeal to the BPAI from that application; or 3) an appeal to the BPAI of a claim twice rejected in a patent application or reissue application or finally rejected in an ex parte reexamination, without accelerating the underlying matter which generated the appeal.  Inter partes reexamination and interference proceedings are not eligible for acceleration, nor are any of the new post issuance review procedures under the America Invents Act (AIA).  The certificates may be applied to any application, even those not related to the subject of the humanitarian program application.

While it is questionable as to whether this program will accomplish the goal of accelerating patents that advance humanitarian technologies or provides much of a prize to the winners, it definitely will bring public attention to new technologies.  As long as applicants go into the program with that primary objective in mind, the applicants will likely not be too disappointed with an acceleration certificate that may or may not help them obtain a patent. 

For more information on this program or to inquire how you might apply, please feel free to contact Jana Harris or Alex Forman.     

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.