Technologist2021-03-15T15:03:00ZTechnologistRevisiting the Legality of Password Sharing as Netflix Begins to Crack Down2021-03-15T15:03:00Z2021-03-15T15:03:43ZDid you commit a federal crime today? You might have if you logged on to a shared Netflix password.Joseph Fawbush, Esq.technologistAccording to Comcast's recently released 2020 network data, streaming video remains ? by far ? the largest use of the internet in the home. This is true despite more people than ever using video conferencing technology while working from home. On the other hand, there's not that much to do anymore after work but see what's on Netflix, right?

Netflix, unsurprisingly, is aware of how much people rely on video streaming services. Despite historically being incredibly lenient on password sharing, Netflix is now testing a new policy that prompts some people to sign up for their own account if they do not live in the same household as the registered owner. "If you don't live with the owner of this account, you need your own account to keep watching" the prompt warns.

It Is Actually a Federal Crime - Sort of

You probably figured out already that Netflix has a user agreement prohibiting sharing your password with everyone. Somewhat surprisingly, there is a federal law that prohibits password sharing, as well. The Computer Fraud and Abuse Act (CFAA) makes it a federal crime to share passwords, although it's unlikely that the FBI will raid your home because you are still on your ex's account despite breaking up several months ago. Still, in 2016, the Ninth Circuit held that in certain cases sharing passwords did violate the CFAA. SCOTUS declined to take up the issue on appeal. 

The feds have never prosecuted anyone for sharing a streaming service platform password, however, and courts have never explicitly addressed the issue of whether doing so violates the CFAA.

A New Impetus to Stop Password Sharing?

A much more likely scenario than federal prosecution is Netflix simply requiring you to pay for your own account moving forward. While streaming services have historically turned a blind eye to password sharing, in part believing it to be an advertising tool, in 2019 Disney and Charter Communications began enforcing its restriction on password sharing. Now, it appears Netflix is experimenting with the idea, as well.

With Disney+ and Netflix apparently cracking down on password sharing, we may see a renewed attempt to get more paid subscribers with their own accounts. Meanwhile, if you have inadvertently violated federal law (maybe) by getting your parents' Netflix password, it's still not something to lose sleep over. Not being able to watch your favorite shows may be a separate issue entirely.

Related Resources

2021 May Bring Pro-Labor and Unionization Movement in Tech (FindLaw's Technologist)

Amazon Alleged to Spy on Its Workers Even More Than Its Consumers (FindLaw's Greedy Associates)

Supreme Court Holds That Nominal Damages Is Enough for Standing (FindLaw's U.S. Supreme Court)

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2021 May Bring Pro-Labor and Unionization Movement in Tech2021-01-05T09:01:00Z2021-01-05T09:01:03ZIs a pro-labor movement about to take hold in tech?Joseph Fawbush, Esq.technologistThere are several reasons to expect a bigger worker push to unionize in 2021, particularly in the tech industry. For one, the new Biden administration is expected to promote more labor-friendly policies, including a shift in the National Labor Relations Board. Secondly, the forced work-from-home policies that continue to dominate the workplace have made it easier for unions to communicate with workers. Finally, both Congress and the public have begun questioning Amazon, Google, and other tech giants for their workplace policies. Amazon, in particular, has faced significant criticisms over its treatment of workers.

Unionization Efforts Already Underway

For many tech workers, the unionization process is already underway. In Bessemer, Alabama, for example, nearly 6,000 Amazon workers will vote soon to determine whether they will join the Retail, Wholesale and Department Store Union. Amazon and the Union had arguments before the National Labor Relations Board in late December. The Retail, Wholesale and Department Store Union represents a variety of workers in brick-and-mortar stores such as Macy's.

Amazon has fought vigorously to keep its workers from unionizing, going as far as to hire Pinkerton detectives to spot unionizing efforts worldwide. Amazon, which has hired an average of 1,400 workers a day, is on pace to become the nation's largest private employer in a few years, eclipsing Walmart.

At Alphabet, Inc., meanwhile, employees Parul Koul and Chewy Shaw wrote an op-ed in the New York Times stating that ". . . 226 of us have signed union cards with the Communications Workers of America ? the first step in winning a recognized bargaining unit under U.S. law. In other words, we are forming a union."

Koul and Shaw are the Executive Chair and Vice Chair of the Alphabet Workers Union, respectively. In their opinion, leadership at Alphabet, Inc. has failed to do enough to address diversity and inclusion, has retaliated against workers who reported sexual harassment, and does not provide contractors and temp workers with enough pay and benefits. They seek to improve on all these issues through unionization. However, the union does not have collective bargaining rights since it did not go through the NLRB, and 226 workers in a company the size of Alphabet is unlikely to bring a significant amount of pressure on one of the most influential companies in the world.

Most Tech Workers Not In a Union

While there may be an increased number of unions in the next few years, by no means is the industry likely to change in a short time. Outside of a relative few instances, most tech workers are not in a union. And the NLRB itself will remain in Republican hands until at least 2022, and perhaps longer, depending on how the political appointments play out. The upshot is that while unionization movements appear to be gaining momentum, the industry is unlikely to change dramatically in 2021. But pro-labor movements in tech are likely to make inroads over the coming year.

Related Resources

Amazon Alleged to Spy on Its Workers Even More Than Its Consumers (FindLaw's Greedy Associates)

State Attorneys General File New Lawsuit Against Google Over Advertising Tactics (FindLaw's Technologist)

Justice Dept. Decides It's Finally Time to Enforce Antitrust Laws After 20-Year Hiatus (FindLaw's Technologist)

Federal Court Rejects Challenge to Online Censorship Executive Order (FindLaw's Technologist)

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State Attorneys General File New Lawsuit Against Google Over Advertising Tactics2020-12-17T14:12:00Z2020-12-17T14:12:17ZGoogle has become a major gatekeeper in digital ad sales, but ten state attorneys general have decided it's playing too big a role in the marketplace. Find out more on FindLaw's Technologist.Laura Temme, Esq.Internet & Online PrivacyAttorneys general from ten states, led by Texas, filed suit against Google this week over its digital advertising tactics. It's the second major lawsuit filed against Google in recent months challenging the tech giant's alleged monopoly power. The first, filed by the Justice Department, alleges that Google maintains its role as the dominant search engine by forcing other companies into exclusivity arrangements. This time, the AGs accuse Google of playing too large a role in the online advertising space. They also claim that Google colluded with Facebook to promote its own products.

"If the free market were a baseball game, Google has positioned itself as the pitcher, the batter, and the umpire," said Texas Attorney General Ken Paxton in a video posted to Twitter announcing the lawsuit.

Google Likely Facing An Uphill Battle

The online advertising marketplace is a complicated one, where nearly all online publishers depend on Google to be the middleman in e-commerce and internet advertising venues. The complaint alleges that internal documents from Google reveal the company "sought to kill competition" through various exclusionary tactics, including an unlawful agreement with Facebook to fix advertising auctions.

Google does hold a dubious position in the online advertising market, often representing both buyers and sellers while also operating AdX - the largest exchange platform for digital ads. If successful, this lawsuit could really hit Google where it hurts, as the company generates nearly all of its revenue from ad sales - roughly $135 billion last year.

The End of An Era?

Google points to falling prices in digital advertising over the last ten years and its practice of charging less than the industry standard for online ads as evidence that it does not hold monopoly power. The company has called these most recent claims "meritless," and says it will defend its "don't be evil" reputation.

But the AGs contend that "the public image of brainy Google engineers having fun at their sunny Mountain View campus while trying to make the world a better place" is a lie. They say the company has repeatedly and brazenly violated antitrust and consumer protection laws, and that it's finally time for someone to do something about it. Tech companies have enjoyed a fair amount of latitude from regulators for years, but it seems that era is coming to an end.

Related Resources:

Justice Dept. Decides It's Finally Time to Enforce Antitrust Laws After 20-Year Hiatus (FindLaw's Technologist)

Federal Court Rejects Challenge to Online Censorship Executive Order (FindLaw's Technologist)

Amazon Alleged to Spy on Its Workers Even More Than Its Consumers (FindLaw's Greedy Associates)

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Federal Court Rejects Challenge to Online Censorship Executive Order2020-12-15T09:12:00Z2020-12-16T11:12:14ZPresident Trump's executive order seeking to initiate Section 230 reform can stand, a D.C. district court judge has held.Joseph Fawbush, Esq.technologistPresident Trump has won a small court victory in his ongoing attempt at Section 230 reform. Section 230 protects social media companies from liability when they remove offensive content. Despite the win, however, it appears that President Trump will not have been able to make significant changes to Section 230 during his term.

The Trump administration's Executive Order on Preventing Online Censorship, issued last May after Twitter began including fact checks on the President's tweets, started the process for federal agencies to re-examine Section 230. While controversial, the EO did not immediately accomplish anything substantial, instead directing agencies to examine potential laws and consider possible enforcement action. Even at the time, it was largely dismissed as a political statement more than a concrete step toward Section 230 reform.

That didn't stop the Center for Democracy and Technology, a tech policy group, from challenging the EO as an illegal retaliation action against social media companies that had displeased the President. On Friday, December 11, a federal district court judge in Washington, D.C. held in favor of the President, finding at the pleadings stage that CDT lacked standing to contest the EO. According to District Court Judge Trevor McFadden, CDT did not suffer any concrete, particular harm - and the claims were not ripe for litigation.

President Trump's Efforts to Revise Section 230 Appear to Have Failed

Despite the court win for the Trump administration, its larger efforts to amend Section 230 appear to have failed. In a last-ditch attempt to create meaningful change, President Trump threatened to veto the National Defense Authorization Act, which Congress has passed every year since 1967, unless it also revised Section 230. However, a veto-proof 84 Senators passed the bill, rendering President Trump's threat largely hollow. It is also possible the President was bluffing when threatening to veto the bill.

But . . .

Despite failing to get Section 230 liability reform passed in the unrelated NDAA bill, many members of Congress remain open to Section 230 reform. During this past summer's Congressional hearing involving the four heads of Big Tech, Rep. Jim Jordan (R-OH) and others called out Big Tech's alleged bias of conservative voices on Facebook, YouTube, and other social media platforms. The Department of Justice submitted proposed legislation to Congress revoking Section 230 in October.

Proponents of Section 230 will not be able to rest easy any time soon, as President-Elect Joe Biden has previously indicated support for a repeal of the decades-old law, albeit for vastly different reasons than President Trump or Representative Jim Jordan.

Related Resources

Justice Dept. Decides It's Finally Time to Enforce Antitrust Laws After 20-Year Hiatus (FindLaw's Technologist)

Committee Hearing Shows the Fight to Regulate Big Tech Is Just Starting (FindLaw's Technologist)

Will Upcoming Battle Royale Against Google and Apple Finally Lead to App Store Changes? (FindLaw's Technologist)

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FCC Again Rejects Net Neutrality Even as Controversy Reignites2020-10-28T15:10:00Z2020-10-30T15:10:02ZThe FCC has reiterated the Restore Internet Freedom Order (RIFO), which ended net neutrality, is allowed under federal law.Joseph Fawbush, Esq.technologistThe fight over net neutrality is not over. Even as states individually tackle the issue of equal access to broadband, the Federal Communications Commission again voted to reject the Obama-era regulation mandating internet service providers (ISPs) provide equal access to bandwidth. The FCC ended net neutrality in 2017, reaffirming its commitment to this on October 27, just days before the election.

The D.C. Circuit Court of Appeals upheld the repeal in 2019 but sent a remand order to the FCC to resolve several issues:

  • How the repeal of net neutrality could impact public safety
  • The regulation of "pole attachments" (attachments telecommunications providers make to a utility pole or conduit)
  • Access to broadband for low-income consumers through its Lifeline program

Yeah, We're Good

On a party-line vote, the FCC maintained that the D.C. Circuit's remand order did not change in any way the agency's repeal of net neutrality. According to the proposed draft order, the FCC maintains that its Restore Internet Freedom Order (RIFO) promotes public safety, any loss of pole attachment rights for broadband providers is minimal compared to the benefits, and the Lifeline program is allowed under federal law.

The order gets into the weeds of telecommunications regulations, but one example of the issues at play involves the access broadband-only providers have to utility poles. Historically, it has been difficult for broadband-only providers to access these poles to add attachments and expand their networks. In reclassifying broadband to an information service under federal law, broadband-only ISPs lost some legal protections. Does this hurt new market entries? According to the FCC, no: "[I]t would be counterproductive to upend our light-touch regulatory framework for broadband Internet access service because of speculative concerns that at most would impact a small minority of ISPs and consumers" it argues.

An Endless Election Issue and Legal Battle?

While not a prominent part of either campaign, Democratic candidate Joe Biden has made the reinstatement of net neutrality part of his platform. President Trump, meanwhile, supports the FCC's current stance.

The two Democrats on the FCC wrote that the order does not do enough to address the D.C. Circuit Court's questions. Should the federal appeals court agree, it could once again take up the case (the order is almost certain to be challenged in court) and potentially send another remand order. Of course, that presumes that President Trump wins re-election and the FCC maintains its position.

Both sides seem to be entrenched. There is no end to the legal fight in sight. Meanwhile, in part perhaps due to the uncertainty still surrounding the issue, no ISP has changed the way consumers can access the internet, despite having the authority under federal law to do so. The fight continues.

Related Resources

The Net Neutrality Fight Moves to the States (Probably) (FindLaw's D.C. Circuit Court of Appeals)

California Pushing Ahead for Net Neutrality (FindLaw's California Case Law)

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Justice Dept. Decides It's Finally Time to Enforce Antitrust Laws After 20-Year Hiatus2020-10-22T16:10:00Z2020-10-23T11:10:51ZThe DOJ recently filed a lawsuit to end Google's monopoly on the internet search game. Find out more on FindLaw's Technologist.Laura Temme, Esq.Internet & Online PrivacyGoogle is no longer the "darling of Silicon Valley," according to a complaint filed by the Justice Department and several state attorneys general this week. What began as a "scrappy startup" has become an industry behemoth, to the point that the agency has remembered the United States has antitrust laws - and it's their job to enforce them.

The U.S. government hasn't gone after a tech company in this way since the late 1990s - when it filed against Microsoft. And when the two complaints are placed side by side, it's tough to tell which was written in 1998 and in 2020. But this is a massive case, and could signal the end of government complacency when it comes to monopolies.

DOJ Accuses Google of Strong-Arming the Competition

The agency accuses Google of stifling competition by making deals with other tech giants that essentially make Google the only search engine in town. Specifically, the complaint alleges that Google has maintained an illegal monopoly by:

  • Forcing other tech companies into exclusivity agreements that "forbid preinstallation of any competing search service"
  • Entering into arrangements that force preinstallation of its search engine in prime locations on mobile devices and making them undeletable
  • Maintaining long-term agreements with Apple that require Google to be the default search engine on Apple's Safari browser and other Apple search tools
  • Buying preferential treatment on devices, web browsers, and other "search access points"

Google pays distributors and manufacturers billions of dollars every year to "lock up distribution channels and block rivals," according to the complaint. Indeed, Google vastly outperforms competitors when it comes to market share, handling around 90 percent of all search queries worldwide.

"But Google Is Free!" (They'll Say)

Google will have a hard time convincing a judge it doesn't have monopoly power over internet searches. But who is harmed when the product is free to everyone? Microsoft's Internet Explorer was free as well, but the government argues (then and now) that it's the very idea of competition being harmed here:

"General search engine competitors are denied vital distribution, scale, and product recognition - ensuring they have no real chance to challenge Google."

Google's influence is so great that even the word "Google" has taken the place of other verbs for searching the internet. Plus, a monopoly could still mean higher prices for advertisers, weakened privacy protections, and less incentive to keep up product quality.

For its part, the company has called the DOJ's suit "deeply flawed." But if the DOJ wins, it could signal big changes that would bring antitrust law into the digital era.

Related Resources:

Committee Hearing Shows the Fight to Regulate Big Tech Is Just Starting (FindLaw's Technologist)

Will Upcoming Battle Royale Against Google and Apple Finally Lead to App Store Changes? (FindLaw's Technologist)

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Is the Pandemic the Push Legal Needed to Really Embrace Technology?2020-10-01T14:10:00Z2020-10-01T14:10:39ZImplementing new technology in your business isn't always easy. But the coronavirus pandemic forced many of us to adapt to big changes, very quickly. How many of these changes will stick around? Find out on FindLaw's Technologist.Laura Temme, Esq.Internet & Online PrivacyLike so many employers, law firms were resistant to the idea of letting employees work from home or relying too much on technology - until they had no choice. The coronavirus pandemic forced many industries to reconsider how people work and use technology. Even the Supreme Court began holding oral arguments via video conference. 

Although a recent survey shows that most lawyers don't want to work from home full-time, it's unlikely firms will be able to completely roll back remote work when the pandemic subsides. At least some of the tech tools used over the last six months will stick around. Consider these silver linings:

Saving Time

One of the most significant benefits of remote lawyering we've heard about is saving time - especially travel time. Like so many of us, lawyers who no longer have a commute have extra hours in the day now. And that time can be used to take better care of clients or ourselves.

Attorneys who do a lot of their work in court can fit more clients into their day. Remote hearings mean no traveling to the courthouse, or for some, multiple courthouses. We're not expecting courts to continue holding all hearings remotely when it is safe to do so person again, but there are certainly opportunities to take advantage of this efficiency. Scheduling conferences, for example, could be conducted remotely rather than forcing attorneys to travel to the courthouse for a 15-minute meeting with the judge.

Thinking More About Security

We've written quite a bit on this blog about the cybersecurity risks law firms face. But the general consensus remained that law firms were tempting targets for hackers because they often had lax security. Perhaps the willingness to adopt recent technology will change that.

No longer holding client meetings in person forced firms to think a lot more about internet security, including figuring out which video conferencing platform to use. Keeping client files safe while employees work from home brings up more discussions of secure Wi-Fi networks.

Sometimes we all need a little push to make a change. The pandemic just happened to be a big one. But hopefully, the legal industry can use this time to figure out how best to use technology to keep up with client expectations.

Related Resources:

What a Virtual Private Network (VPN) Can Do For Your Legal Practice (FindLaw's Technologist)

Podcast: Remote Courtrooms on Trial (FindLaw's "Don't Judge Me")

The Case for Reducing Core Hours at Law Firms (FindLaw's Strategist)

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Virtual Court Putting Litigants at a Disadvantage?2020-08-20T10:08:34Z2020-08-05T13:08:10ZThe pandemic has prompted courts to handle cases virtually and remotely. The reviews from litigants are, at best, mixed.Richard DahlDirectoryThe wonders of modern technology ? in this case, Zoom and its videoconferencing ilk ? have allowed the American court system to function even as society locks down for the coronavirus.

No doubt this is a good thing. But is there a negative side?

Now that we have several months of experience with virtual courts, maybe it's a good time to ask the question: How are they working out?

The answer, according to attorneys and litigants, is very much a mixed bag.

The Benefits of Virtual Courts

On the plus side, technology has kept the judicial system operating. Furthermore, many lawyers and judges credit it for improving efficiency in some areas.

?Virtual hearings are ? revealing unique benefits to the judiciary," the National Center for State Courts noted, for example, in a recent report. ?Attorneys can handle more hearings in a day when they don't have to travel between courthouses and courtrooms. Judges (once they are comfortable with the conferencing platform) can handle more cases in a day resulting in faster case dispositions."

NCSC also found that conferencing platforms provide free (or low-cost) automatic transcription that judges can more easily use to review testimony when writing their decisions.

Also, some judges say it has reduced conflict in court proceedings and made them less adversarial.

The Limitations of Virtual Courts

But lawyers and litigants also point to several problems.

Reporting on virtual courts, the website CNET found that people facing immigration proceedings have often been unable to have witnesses vouch for them.

Anna Byers, a senior attorney for the American Friends Service Committee, told CNET, ?Pre-pandemic, witnesses are allowed to come to the courtroom as long as they have some form of ID. Post-pandemic, the courtroom is closed to everybody except court staff."

Courts are not allowing witnesses, she said, because their identities can't be verified virtually.

For criminal defendants, the situation is similar.

Under the confrontation clause, criminal defendants have a right to confront witnesses who are called against them. Does a video hearing meet that requirement?

?Many would argue that the virtual appearance does, as long as the person can be heard, can be seen, can be vigorously subjected to cross-examination on behalf of the defendant," Matt Wiese, chief prosecuting attorney in Marquette County, Michigan, told the news website Michigan Live. ?And then there are others that say absolutely not, it has to be in person."

Defendants appearing in virtual courts are oftentimes behind bars in jail, an environment not conducive to making a good impression.

Virtual courts also make it difficult for attorneys and clients to engage in privileged communication during hearings.

Technical Limitations

Remote litigants might be hampered by bad equipment, weak internet connections, inexperience in using video cameras and lighting. Clearly, these limitations can put them at a disadvantage.

The Surveillance Technology Oversight Project recently examined this issue and released a comprehensive report that examines the technology of virtual courts and its effect on proceedings and fairness.

?Many litigants and defendants lack the hardware and/or internet connectivity to participate," S.T.O.P. reported. ?There are also significant privacy threats from the integrated recording capability on many video conference platforms. Courts must account for the digital divide as well as security vulnerabilities, potential fraud, and the risk of manipulated audio/video in evaluating online courts."

S.T.O.P. identified several specific problems:

  • Lawyer/client communication. How secure are the ?breakout rooms" that Zoom purportedly provides for counsel/client meetings?
  • Transmission of sensitive files. How is evidence to be introduced, authenticated, and stored in virtual courts?
  • Errors handling technology. Connectivity issues and mistakes in sharing sensitive information pose risks of compromising a proceeding.

Loss of the 'Human Touch'

Anyone who's been to court knows that it's much like a theatrical presentation. There are usually two sides to a case, and the boundaries between the groups are clearly demarcated in an area a bit lower than the judge who sits elevated in the middle of the rear. There are numerous parties, many questions and responses. Facial expressions, body language, and demeanor can be critically important in determining the outcome of a case.

Most of that is missing in a virtual trial.

?In a live courtroom, it's an open space and body language is critically important and spacing is critically important," Alabama attorney Gar Blume told the news website, The Appeal, in describing a recent virtual court proceeding he was involved in. ?Now the first set of things we started worrying about was, 'OK, where are we going to put the camera? Does it need to be up? Does it need to be down? Does it need to be on the side? How do we adjust the camera?'"

Blume, who's been practicing since 1978, concluded, ?For 42 years it's been theater, and now it's film."

And that takes some getting used to.

Related Resources:

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Will Upcoming Battle Royale Against Google and Apple Finally Lead to App Store Changes?2020-08-18T10:08:00Z2020-08-25T16:08:31ZApple's App Store and Google Play may finally need to make way for other app providers.Joseph Fawbush, Esq.technologistWhat else is there to do for fun during a pandemic but play video games? That is why video games have never been more popular, and perhaps none more so than Fortnite: Battle Royale. The free-to-play game has had hundreds of millions of players worldwide since it debuted in 2017 and continues to see unparalleled success.

Fortnite makes its money from in-game purchases, microtransactions, and a subscription option. In 2019, Epic Games brought in $1.8 billion from players. A cross-platform game, it can be played anywhere consumers play games, including iOS and Android smartphones.

It is from that base of support and money that Epic Games, the maker of Fortnite, is challenging Apple and Google's dominance of the app marketplace.

No More "Skins" for You

Epic Games recently offered gamers the chance to do an end-run around the tech giants' proprietary purchase systems, which take 30-40% of sales, and instead make direct purchases. Epic Games then immediately lowered the cost of their game purchases. Reducing prices, it turns out, is a good way to generate support for your company's legal position.

Apple and Google both booted Fortnite for violating their respective terms of service, which explicitly prohibit developers from doing this. Epic Games, clearly spoiling for a fight, quickly filed separate lawsuits against both Apple and Google for violating antitrust laws.

Not Their First Rodeo

This is not the first time Apple has been accused of holding a monopoly. In the most recent example, lawmakers in D.C. questioned Apple extensively over whether its App Store is anticompetitive. According to Reuters, developers are extremely reliant on the App Store, with 70% of app revenue coming from the App Store.

In its complaint, filed in the U.S. District Court for the Northern District of California, Epic Games alleges that Apple violates the Sherman Act and the Cartwright Act, a California antitrust law, by monopolizing app purchases on iOS devices. There is no alternative to the App Store on iOS devices. Apple is seeing a coordinated and strong attack on its so-called "Apple tax."

Will Google Have an Easier Defense?

Epic Games made similar complaints against Google, alleging Google Play monopolizes app downloading. However, Epic Games has perhaps a more difficult claim against Google Play. For example, while Apple requires all apps to be downloaded on iOS devices through the App Store, Google allows several stores to operate on its platform. However, Google does make it much, much easier to use Google Play on Android phones.

As one example, Epic Games referred to a previous plan to have OnePlus smartphones include an Epic Games app on their phones, which would bypass the Google Play store available on all Android OS smartphones. However, OnePlus pulled out of the deal after pressure from Google, according to the complaint. Google also encourages Android smartphone providers to use Google Play as the default and puts up security warnings for any other app provider.

Are Changes Coming to the App Store and Google Play?

Epic Games alleges that the two tech giants' monopolies cost consumers through anticompetitive fees, which Epic Games sought to prove when it immediately lowered its prices after allowing direct purchases from gamers. Fortnite is not seeking damages, instead asking the two tech giants to enable third-party app providers greater access to the marketplace. Should Fortnite prevail, both Apple and Google could be forced to make way for alternative app stores and lose some of the revenue they enjoy from their market dominance.

Epic Games has certainly made bold and confident moves so far. While the legal case appears strong, if the two companies do not settle protracted litigation is almost a certainty. Meanwhile, the long-term prospects for where (and how much) we can purchase that Fishstick skin we so desperately need remains unclear.

Related Resources

Committee Hearing Shows the Fight to Regulate Big Tech Is Just Starting (FindLaw's Technologist)

Which Video Chat Platforms Are the Most Secure? (FindLaw's Technologist)

Apple Loses App Store Antitrust Appeal (FindLaw's Technologist)

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Committee Hearing Shows the Fight to Regulate Big Tech Is Just Starting2020-07-31T09:07:00Z2020-07-31T09:07:04ZBig Tech was on the hotseat at a Congressional subcommittee hearing. But we're still a ways away from any new regulations.Joseph Fawbush, Esq.technologistIn a long, grueling day of questioning before a House Judiciary subcommittee that included ? of course ? technical difficulties, the CEOs of Big Tech were subject to a barrage of questions from lawmakers. Legislators from both parties argued that Amazon, Apple, Facebook, and Google have engaged in practices that violate (or should violate) antitrust law.

The criticisms of Big Tech have been coming for some time. Last June, government agencies including the Federal Trade Commission began investigating Google, Amazon, and others for antitrust violations. For much of the hearing, lawmakers took the opportunity to highlight their findings. Rhode Island Rep. David Cicilline said the committee will issue a report in a month on the results of its investigation. The report may ultimately provide the foundation for new legislation or regulations on Big Tech.

Leveraging Powerful Platforms

Lawmakers accused these companies of leveraging their uniquely powerful platforms to create choke points that hurt competition. In the hearing, Democratic lawmakers accused the four companies, worth something close to $5 trillion combined, of acquiring competitors unlawfully (Facebook), using rival companies' data (Amazon), and in the case of Google, steering users toward results that benefit their own products. Apple, meanwhile, had to answer questions about stifling competition in its App Store.

Existing antitrust laws primarily focus on the impact on consumers. Because Big Tech is much different than Big Steel and other monopolies targeted in centuries-old rules, some have argued new or updated legislation is needed to break up outsized tech companies. Not everyone on the committee expressed this view, however.

Political Censorship

Republicans on the committee focused their attention on anti-conservative bias online. According to Rep. Jim Jordan of Ohio, both Google and Facebook censor conservative voices. Democrats, too, have said social media companies like Facebook have not done enough to prevent false political claims. While a separate issue from whether Big Tech has violated antitrust laws, its continued focus in the hearing suggests that any potential legislation addressing the size of Big Tech may include attempts to revise censorship and liability laws for online platforms.

Will Antitrust Laws Be Updated?

While there appears to be some momentum to update antitrust laws, it is by no means clear Congress is able to tackle the issue anytime soon. Facebook CEO Mark Zuckerberg, for example, argued that breaking up Big Tech would hurt America's ability to compete with Chinese tech companies. This argument could find a receptive ear in Congress. What's more, some technology, such as AI, can be done best using massive amounts of data. One example is Facebook's advanced facial recognition software, which came about primarily due to Facebook's access to billions of photographs. Whether facial recognition technology is a good thing is a debate for another time.

The hearing highlighted another issue with regulation, as well. A monopoly on steel looks, organizationally, much like a monopoly on oil. However, for tech, Amazon, Apple, Google, and Facebook do vastly different things in different ways. Any legislation would have to account for these differences to be effective.

Big Tech gets criticized by both parties and the public. Whether this criticism will translate into any changes in the law is still anyone's guess. Whatever the path forward, however, there is sure to be intense disagreement.

Related Resources

Boston Is Latest City to Ban Facial Recognition Technology, Even as Federal Legislation Introduced (FindLaw's Technologist)

After Executive Order Condemning Online Censorship, Should Social Media Companies Fear Liability? (FindLaw's Technologist)

U.S. District Court Clears Sprint, T-Mobile for Merger. Will This Speed 5G Networks? (FindLaw's Technologist)

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Boston Is Latest City to Ban Facial Recognition Technology, Even as Federal Legislation Introduced2020-06-29T13:06:00Z2020-06-29T13:06:18ZThe debate over facial recognition technology continues. More cities are banning its use by law enforcement.Joseph Fawbush, Esq.technologistFears over the use and abuse of facial recognition technology are prompting municipalities across the U.S. to ban facial recognition technology. It has also led federal legislators to introduce a bill that would prohibit federal agencies from using the controversial AI-driven software.

Boston city officials and police will no longer be able to use facial recognition technology, after an ordinance passed on Wednesday, June 24. San Francisco was the first city to ban the emerging technology, and other cities have followed suit. Notably, Boston is the sixth city in Massachusetts that prohibits the local government from using facial recognition technology. Boston is the second-largest city to ban city use of facial recognition technology. The next day, June 25, Democratic lawmakers introduced a bill targeting federal law enforcement use of facial recognition technology. Congressional lawmakers have been considering the issue since the beginning of the year.

Meanwhile, Amazon announced earlier this month that it will stop selling its facial recognition technology to police for one year nationwide. Microsoft has also said it will limit who it sells its technology to, and Microsoft President Brad Smith has publicly called for federal legislation limiting the use of facial recognition technology. IBM has stopped investing in facial recognition technology altogether.

Technology With a Racial Bias?

There have long been privacy and constitutional concerns regarding the use of facial recognition technology. However, in the wake of mass protests over police violence, there has also been increased awareness of the role bias plays in the use of the technology.

The tech itself has difficulty distinguishing minorities. Facial recognition technology uses artificial intelligence. Currently, AI programs rely on massive data sets to be able to distinguish between faces. When machine learning occurs on predominately white data sets, the result is that more errors occur in minorities.

In addition, law enforcement can potentially use facial recognition software as an enforcement tool targeting minority communities. According to Congresswoman Ayanna Pressley, who introduced the bill in the House, ?Black and brown people are already over-surveilled and over-policed, and it's critical that we prevent government agencies from using this faulty technology to surveil communities of color even further."

While it is unclear if the bill will even make it to a vote, municipalities are continuing to examine the issue. As major cities re-examine law enforcement tools, it is likely more cities will contemplate banning the use of facial recognition technology.

Related Resources

Is Congress About to Take a Shot at Regulating Facial Recognition Technology? (FindLaw's Technologist)

How Can Your Law Firm Use Facial Recognition Technology? (FindLaw's Technologist)

Is Facial Recognition 'Disrupting' Civil Rights? (FindLaw's Technologist)

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After Executive Order Condemning Online Censorship, Should Social Media Companies Fear Liability?2020-06-01T14:06:00Z2020-06-05T16:06:53ZAn apolitical and easy-to-understand analysis of the President's power to regulate social media companies under Section 230.Joseph Fawbush, Esq.technologistSection 230 of the Communications Decency Act has long been a contentious law. It provides liability protection for internet companies that host third-party content. Under Section 230, online platforms may use internal standards and user agreements to determine when and how to remove or flag content that is ?obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable." Online companies that do so ?in good faith" are subsequently protected from liability for content it may miss. It also prevents the courts from treating social media companies as publishers of third-party content, which makes it so that social media companies cannot be sued for defamation for content posted by users.

Background of CDA Section 230

Congress passed the Communications Decency Act in 1996 in order to help fledgling internet companies remove pornography uploaded by third-party users without fear of liability. But as the world moved online, this law became increasingly important.

The debate boils down to whether large online platforms are publishers or distributors. Publishers can be held liable for the content they publish through defamation and other torts (think traditional news media). Social media companies argue they are distributors of content, not publishers, and do not make editorial decisions. Distributors cannot be sued for the content posted by third parties since they are not responsible for the messaging. Section 230 flatly states that no ?interactive computer service" such as social media platforms ?shall be treated as a publisher." In other words, they can't be sued for defamation and other torts for the content users post.

To summarize, Section 230 does two things:

  • Prevents social media companies from being sued as a "publisher" of content
  • Prevents social media companies from being held responsible when it flags or removes objectionable content in good faith. 

Trump's Executive Order

In response to a presidential tweet getting fact-checked by Twitter, President Trump issued the Executive Order Preventing Online Censorship. This EO targets the part of Section 230 that prevents liability for removing content in good faith. 

Briefly summarizing, the EO:

  • Condemns selective censorship and calls for social media companies that engage in ?editorial" conduct to lose liability protection
  • Calls on the Department of Commerce (through the National Telecommunications and Information Administration) to file a petition for rulemaking for the Federal Communications Commission to propose regulations to clarify when internet companies act in good faith when removing or flagging content
  • Calls for all federal agencies to review their social media spending and report back the amount they spend, along with any statutory authority they have for removing that spend
  • Calls for the Federal Trade Commission to review and take action against social media companies it finds to engage in practices that do not abide by their terms of use (i.e. who may be engaging in deceptive trade practices)
  • Calls for a state AG investigation into whether Twitter or Facebook engage in discrimination

The FCC's Role in Regulating Social Media Is Small

The President of the United States cannot, of course, amend an existing law. Nor can the Executive Branch interpret a law for the courts. An executive order can, however, direct federal agencies (with some exceptions).

So, could the FCC enforce regulations regarding when an interactive computer service engages in bad faith in removing objectionable content? The answer is: Probably not.

Section 230 does not give the FCC any authority to take enforcement action ? Section 230 is directed at the courts. Federal courts have held that when a statute is ambiguous, a federal agency can step in to fill the gaps. The EO appears to be banking on the term ?good faith" to be ambiguous. However, the FCC itself has relied on the interpretation that Section 230 does not allow it to interfere with interactive internet companies.

If the FCC did argue Section 230 gives the FCC broad regulatory authority, it would have an uphill battle in courts to show that this interpretation is not arbitrary and capricious, since it would be reading the same statute in two contradictory ways. Further, even if ?good faith" is ambiguous, the FCC would still have to get around the fact that Congress wrote in plain language that social media companies cannot be treated as publishers. 

President Trump has indicated he will push Congress to amend Section 230. If the Trump Administration wishes to alter the liability shield social media companies currently enjoy, Congressional action would appear to be the best route to do so.

Related Resources

Potential Amendments To CDA Section 230 Relating to Immunity Provided To Internet Intermediaries (FindLaw's Technologist)

President of Microsoft Argues for Social Media Regulation (FindLaw's Technologist)

What To Do About CDA Section 230 And ISP Immunity? (FindLaw's Technologist)

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What a Virtual Private Network (VPN) Can Do For Your Legal Practice2020-04-08T16:04:37Z2020-04-08T15:04:34ZAs many of us adjust to working from home, you've probably heard "VPN" thrown around. Find out what it is, and why lawyers need it on FindLaw's Technologist.Laura Temme, Esq.Internet & Online PrivacyVirtual Private Networks (VPNs) are used for a variety of reasons these days, from accessing different country's streaming services to downloading, well, "dubious" files. But they were initially created to allow employees of a business to access the company network from home or from the road. Instead of having essential files saved to their device, where they're quite vulnerable, they are kept in a central location with better security.

How Do VPNs Work?

As its name implies, a VPN creates a secure, private connection to a network of your choosing via the internet. It encrypts your entire internet connection by re-routing it through another server. Maybe you've heard that VPNs can make it look like your computer is in a different location, even a different country. That's because of this re-routing process.

Bottom line: it makes your connection much harder to hack.

Why Lawyers Need VPNs

Using a VPN is especially important when working from home or other remote arrangements. First, our home wifi is often not as well-protected as the one at the office. And even with a strong password, data can still be shared by your internet service provider (ISP). ISPs often collect customer data, anonymize it, and sell it. It's generally not a malicious practice, but it is a cause for concern for those who need to protect client information. Law practices have also become prime targets for hackers - especially those that handle the data of corporate clients.

The Bright Side

Even though the concepts behind VPNs are a little complicated, using them is surprisingly easy. There are several services out there that offer VPNs for a reasonable price, and they're often packaged with other security tools. And once you have it, you just click connect, maybe enter a password, and you're good to go. Many even allow you to have the VPN automatically connect when your computer starts up.

Once you have it set up, be sure all staff know about the business VPN and how to use it. As many in the cybersecurity world like to say: Your system is only as secure as its weakest point.

Related Resources:

Which Video Chat Platforms Are the Most Secure? (FindLaw's Technologist)

Essentials for Your New Home Office (FindLaw's Technologist)

How to Effectively Manage Remote Staff (FindLaw's Law Firm Management)

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Which Video Chat Platforms Are the Most Secure?2020-04-01T10:04:51Z2020-04-01T08:04:19ZAs video conferencing becomes the new norm, many attorneys are wondering how to keep in touch with clients while keeping the details secure. Find out more on FindLaw's Technologist.Laura Temme, Esq.Internet & Online PrivacyWe recently covered some of the most user-friendly free video conferencing platforms, but we also know that security is a significant concern for many attorneys. Below we discuss the most common form of protection for online communication, which platforms offer it, and a few other tips.

What Is End-to-End Encryption?

End-to-end encryption basically prevents others from "eavesdropping" on data while it is in transit between users. It scrambles the data so that only the sender and receiver can decipher it. This type of encryption makes mass hacking or surveillance much more difficult, sometimes to the chagrin of law enforcement. Actual end-to-end encryption hides the contents of a message from everyone except the sender and receiver - including the company providing the platform. But more on that later.

What Video Conferencing Platforms Offer Enhanced Security?

Apple users out there are in luck - FaceTime already utilizes end-to-end encryption for video chats. But, of course, this means both you and the client or colleague you are contacting must have access to Apple products.

WhatsApp, the internationally popular messaging platform now owned by Facebook, also offers end-to-end encryption for both messages and calls. It also allows for file sharing and uses Wifi instead of your device's data. The best part? It's free.

Wire, arguably the most secure video platform, uses end-to-end encryption with different encryption keys for each message. However, it is a paid, subscription-based platform.

A Few Tips

With any video conferencing platform, be sure to check what kind of security the platform offers. In some cases, end-to-end encryption is only available for paid versions, or it might cover messages but not audio and video.

Zoom, for example, has run into issues with privacy of late despite being one of the most prolific video conferencing platforms. First, the end-to-end encryption only worked when all participants connected using computer audio instead of calling in. Then, as it turns out, it wasn't true end-to-end encryption. Zoom has access to the data going back and forth.

It's possible Zoom will address these issues in the coming weeks, as the use of the platform skyrockets. In any case, those concerned about keeping client information safe on video platforms just have to do a little research before choosing which one to use.

Related Resources:

Phone and Video Conferencing Tips and Etiquette (FindLaw's Strategist)

Essentials for Your New Home Office (FindLaw's Technologist)

The Recent Spate of Law Firm Hacks, Explained (FindLaw's Technologist)

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Essentials for Your New Home Office2020-03-20T08:03:59Z2020-06-05T08:06:47ZAs part of efforts to stop the spread of covid-19, many people are working from home full-time for the first time. Find out what tech essentials will ease the transition on FindLaw's Technologist.Laura Temme, Esq.Computers Laptops NetbooksA few weeks ago, "social distancing" and "self-isolating" didn't mean much to many of us. But as the novel coronavirus outbreak increases in severity across the nation, businesses all over the country are taking precautions to stop the spread. One of the most prevalent? Encouraging everyone to stay away from the office.

Working from home is nothing new for many of you. And while the novelty of working in one's pajamas usually gives way to actually getting dressed for a home workday, the need for a few basic pieces of tech is ever-present. Not everyone needs all of these items, but they tend to be pretty important for those of us who are used to regularly working from home.

Headset/headphones

Whether you need to block out noisy neighbors or ensure the whole household doesn't hear the contents of your phone calls, a good headset or pair of headphones is a lifesaver when working from home. With so many options available, even wireless headphones that connect via Bluetooth have become quite affordable.

Wireless mouse

If you're anything like me, the touchpad on your laptop is annoying as all get out. Mostly because with regular use, these touchpads inevitably wear out. Save yourself the headache by having a mouse to quickly click between documents - without any cords to get tangled up in.

Extra monitor

A second monitor is especially helpful if you're often viewing more than one document at a time. Or, if you're used to working on a bigger screen. Purchasing a second (or even third, for some of us) monitor is undoubtedly an investment. But, once you go to multiple screens, you'll never go back.

Virtual Private Network (VPN)

This one isn't a physical item, but it's beneficial for those concerned about keeping client information safe outside of the office. Despite a name reminiscent of the Matrix, VPNs are relatively easy to come by. Many antivirus software providers have them either included in their programs or as add-ons.

Related Resources

How to Keep Your Wireless Network Secure When Working From Home (FindLaw's Technologist)

Tips for Staying Productive When Working From Home (FindLaw's Strategist)

Keeping Your Law Firm Operational During an Outbreak (FindLaw's Strategist)

 

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