By: Jeff Pietsch and Michael Robinson

It is Monday morning and you are recovering from a bachelor party in Sin City. Thankfully, your privacy settings on Facebook allow you to share pictures of your shenanigans in Vegas with only your friends. But what happens when your boss asks a friend and coworker to show him your embarrassing and private photos? Should a status update intended for a select few be protected from the prying eyes of your employer?

At an age when over 900 million people use Facebook, it is no surprise employers increasingly use social media in evaluating current and prospective employees. For example, last week the Federal Trade Commission (FTC) approved a process allowing a background check company to screen job applicants’ Internet photos and postings. The FTC determined that such actions were in compliance with the Fair Credit Reporting Act. This means a search of what you have said or posted to Facebook, Twitter, Flickr, blogs, and the Internet may become a standard part of background checks when you apply for a job.  Continue Reading Shoulder Surfing: Can Employers Access Your Facebook Account

By: Nathan Geronimo

We have all participated in practical jokes.  If good-natured, executed correctly, and within the bounds of civility, practical jokes can be a fun way to get closer to people.  However, sometimes jokes can be anything but funny, and in the worst cases can constitute a crime.  In a recent case involving social media sites, California’s Fifth District Court of Appeal found that a minor’s conduct on Facebook constituted identity theft, which can be a misdemeanor or a felony.  In In re Rolando S., a juvenile obtained a classmate’s Facebook login information and accessed her Facebook page.  The minor was able to access the victim’s Facebook page because he received an unsolicited text message with the victim’s email password.  Armed with the email account information and password, he used this information to log into the victim’s Facebook account.  Once in the account, he made obscene changes to the victim’s profile, and posted lewd messages on two of the victim’s male friends’ pages purportedly as the victim. 

The minor was charged with willfully obtaining personal identifying information (which includes unique electronic data) and using it for an unlawful purpose, a violation of California Penal Code section 530.5.  The minor admitted to accessing the victim’s Facebook page and making the offending posts and changes, and he was convicted of identity theft.  On appeal, the minor argued that because he received the victim’s login information via unsolicited text message, that he did not “willfully” obtain the personal identifying information.  The Court disagreed, finding that the minor willfully obtained the information when he chose to remember the password from the text, and used the password to access the victim’s Facebook account.  Essentially, the Court found that the minor demonstrated a willingness to commit the act. Continue Reading Facebook Hijinks No Joking Matter

By: David Muradyan

Online service providers and operators of such sites should take careful note of the Second Circuit Court of Appeals’ recent decision in Viacom Int’l, Inc. v. YouTube, Inc., Case No. 10-3342-cv (“Viacom”), where the court held that service providers and operators will not be protected from the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c), if they have “actual knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement.”

For background, “[t]he DMCA was enacted in 1998 to implement the World Intellectual Property Organization Copyright Treaty,” Universal City Studios, Inc. v. Corley, 273 F.3d 429, 440 (2d Cir. 2001), and to update domestic copyright law for the digital age. Ellison v. Robertson, 357 F.3d 1072, 1076 (9^th Cir. 2004). In particular, the DMCA established a series of four “safe harbors” that allow qualifying service providers to limit their liability for claims of copyright infringement based on (a) “transitory digital network communications,” (b) “system caching,” (c) “information residing on systems or networks at [the] direction of users,” and (d) “information location tools.” 17 U.S.C. §§ 512(a)-(d). The safe harbor at issue in Viacom was § 512(c), which covers infringement claims that arise “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. § 512(c)(1). To qualify for protection under any of the safe harbors, a party must: (1) be a “service provider,” which is defined as “a provider of online services or network access, or the operator of facilities therefor,” Id. § 512(k)(1)(B); (2) satisfy certain “conditions of eligibility,” including the adoption and reasonable implementation of a “repeat infringer” policy that “provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network,” Id. § 512(i)(1)(A), and (3) accommodate “standard technical measures” that are “used by copyright owners to identify or protect copyrighted works.” Id. §§ 512(i)(1)(B), (i)(2). The § 512(c) safe harbor will apply only if the service provider: Continue Reading Second Circuit Holds that YouTube Is Not Protected by the “Safe Harbor” Provisions of the Digital Millennium Copyright Act