Is court anonymization enough in the era of social media and big data?

In the age of social media, are court procedures enough to protect vulnerable parties subject to a publication ban? In a recent article, researchers at the University of Zurich were able to re-identify parties in 84% of judgments studied (the Zurich Study).

Deviations from the “open court principle” often protect the vulnerable

Though the open court principle is the very soul of justice, the courts will allow parties to proceed with anonymized names when the parties are particularly vulnerable. Examples include cases involving children and sexual assault complainants. In these instances the reported decision will contain the facts sufficient to explain the animating legal principles arising from the case, but will not contain identifying information of the party.

Linking databases to learn more about its subjects

The Zurich Study focused on pharmaceutical companies as parties, but it is reasonable to assume that the same re-identification methods could compromise the anonymity of individuals using the wealth of data available through social media. People post volumes of identifying information about themselves, their family, friends, employers, and employees online. This data can combine in unexpected ways to reveal information about the subjects that they did not intend to reveal.

The researchers in the Zurich Study used a method known as data linkage. Data linkage is the procedure where users combine disparate databases containing information on the same subjects to relate the pieces of information across the databases and learn more about the subjects. These databases may not reveal sensitive personal information about the subjects on their own, but through their combination users can obtain information which was not immediately apparent from the databases in isolation.

Judgments and data linking

We live in a society more interconnected than ever. Online content about individuals is never fully in their control, but should the courts participate in producing more information about parties that society excepts from the open court principle? There exists some guidance to assist judges in determining what information to include in judgments, but judges are not experts in data analytics and it is sometimes not apparent what keen observers can deduce from general information. Furthermore, the nature and scope of available data is constantly expanding. Courts themselves are trying to make their own data more readily accessible to the public. Information which is secure today may possibly be compromised in a few years by an errant post.

Future legal considerations

Identifying individuals subject to a publication ban could result in legal sanctions from the court. With the advance of AI, it is possible that the identity of an individual subject to a publication ban is revealed merely though the collection and processing of data and not under the direct guidance of a person. Presently, researchers are already using AI to study unconscious bias in rulings. Could such altruistic research unintentionally link databases in a way that compromises a party’s anonymity? It is unclear how the courts would manage such a situation given that the party’s identity was revealed in part by the court’s own judgment.

What is clear is that social media users may unintentionally reveal more about themselves and their loved ones than they realize. Companies who use and manipulate online data should always be mindful of the privacy concerns of individuals, including their employees.

Social media influencers and FTC disclosures

On November 4, 2019, the U.S. Federal Trade Commission (“FTC”) issued guidance for social media influencers to help them comply with FTC requirements relating to endorsements and disclosures. We have previously covered FTC action and guidance (including advisory letters) in this area, but the FTC has refined and updated its advice a bit: Continue reading

Federal District Court in California finds favoring younger, “social media savvy” employees may constitute age-based harassment

In recent posts, we have discussed how social media use and the enforcement of social media policies can have major implications in wage and hour lawsuits against U.S. employers. Now, a recent case in U.S. District Court in California suggests that social media can also play a role in discrimination suits. Continue reading

Deception sells: The current theme in the age of social media

In this age of social media, companies and brands have faced countless criticisms for their lack of transparency, copyright infringements disguised in the form of “flattery or inspiration” and we can’t forget the many inclusivity flops.

Brands, including beauty brands, are now dedicating more of their marketing budgets to paying influencers for their “honest” reviews in hopes that they can convince the public to purchase their products. What’s more striking is that consumers are heavily relying on social media for help in determining where to place their value and money. With these stakes, some companies have turned to deceptive practices in a search for social media popularity. Continue reading

A legal framework for artificial intelligence

Artificial intelligence (AI) is a field of computer science referring to intelligence demonstrated by machines, in contrast to the natural intelligence displayed by humans. Social media platforms use artificial intelligence technologies such as natural language processing to understand text data, and image processing for facial recognition.

In some instances, regulation tries to create a “legal” definition of AI. For example, a law requiring disclosure of chat bots defines “bot” as “an automated online account where all or substantially all of the actions or posts of that account are not the result of a person.” Article 22 of GDPR provides for the right not to be subject to a decision based solely on “automated processing, including profiling” with legal or significant impact. AI laws also refer to driverless vehicles. These legal definitions of AI determine whether the law applies to the particular AI process or system. Continue reading

Ninth Circuit severs the “debt collection” exemption of the TCPA in dispute over social media text messages

On June 13, 2019, the 9th Circuit handed down a decision in Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019), which has at least partially brought into question the future of the Telephone Consumer Protection Act (“TCPA”).

Around January 2014 Facebook started sending Noah Duguid sporadic text messages, alerting Duguid that an unrecognized browser was attempting to access his Facebook account. The messages followed a template akin to “Your Facebook account was accessed [by/from] <browser> at <time>. Log in for more info.” While this type of message may be alarming to the everyday Facebook user believing their account may be hacked, these text messages alarmed Duguid for a completely different reason – he does not have a Facebook account. Continue reading

Deepfakes: Fake videos need real remedy

Your friend tells you they saw a video of you on social media. You look it up. The person in that video looks like you. That person even sounds like you. To make matters worse the video shows this counterfeit version of you doing something incredibly embarrassing. You have never done what the video is portraying and yet here it is online forever. You have just been victimized by a deepfake.

What is a Deepfake?

Deepfakes (short for ‘deep learning’ and ‘fake’[1]) use AIs trained in audio and video synthesis to manufacture fake videos. The AI system itself is based on adversarial generative learning.[2] These AIs are able to learn how a face moves from a bank of photos that a user inputs. It then superimposes that face onto the body of someone else in an unrelated video. Continue reading

Social Media Activity Used as Evidence of Employees Violating Cell Phone Policy

In an August 1, 2019 post titled “Without Proper Enforcement, Even the Strongest Social Media Policies May Not Protect Employers,” we discussed how enforcement of corporate social media policies was paramount to protecting employers from liability stemming from employee violations of that policy. That post discussed how employers must take care not only to formulate comprehensive social media policies, but also to provide thorough training and ensure rigorous enforcement of those policies to its employees and managers.

In keeping with that theme, this article examines a specific illustration of the importance of maintaining and enforcing corporate social media policies. Continue reading

To regram or not to regram? Legal implications of reposting content to social media

Most of us are familiar with Instagram – a social media engine, primarily utilized in its all-too-familiar form of a phone application, that allows users to share images and videos of themselves or others for public viewing and potential recognition.

With the increased popularity of photo-sharing social media tools like Instagram, users have begun to wonder more about what, if any, intellectual property rights they may own to the content they publish to such sites. In a previous post, we discussed the legal implications of posting content to social media and found that the user is often the primary owner of their content.

This begs the question – if each user is the owner of the content he/she posts, what, if any, are the legal implications of reposting the content of another user? Continue reading

LexBlog