Another one for our “Whoops!” hall of fame. ABC News reports that a California court accidentally put a highly classified settlement agreement on its website, making the secret terms public knowledge. The underlying case involved a gas pipeline explosion, which injured hundreds of individuals, who sued pipeline operators Pacific Gas & Electric Co. Settlements have already been reached in about one quarter of those cases, all of which have been kept confidential.

But for this particular plaintiff- a teenage girl who suffered second and third-degree burns, and will have permanent scars from the blast – the settlement details somehow ended up on the San Mateo County Superior Court website.

“From the clerk’s office to the IT department, something happened,” said Judge Steven Dylina, who is presiding over the girl’s case. “I don’t know where the glitch is.”

There is bound to be an investigation into how this could have happened, and while it’s certainly embarrassing for the court, it’ll make things even more complicated for defendants PG&E. Before, all the settlements were confidential and none of the plaintiffs knew what others received. Now that the remaining plaintiffs have a number in mind, they may hold out for greater compensation for their injuries.

According to that ABC News article:

A confidential report commissioned by state utility regulators found PG&E’s parent corporation could absorb $2.55 billion in penalties tied to the explosion, yet remain financially viable.

Here’s an interesting story from the other side of the Atlantic. Nicola Brookes, a 45-year old single mother posted a message of encouragement on the Facebook wall of an X Factor contestant. And then (via The Daily Mail):

Online trolls turned on her in minutes, writing that she was a ‘desperate pedo [sic] b****’ and ‘a ****ing dog’. 

Within 24 hours she had been hounded with more than 100 messages of abuse.

One of the online bullies set up a Facebook profile in Miss Brookes’s name, using it to send explicit messages to children. It had a picture of her and her email address, with messages falsely describing her as a drug dealer, a prostitute and a child abuser.

Brookes went to the police, who told her there was nothing that they could do. She launched a civil action earlier this year to try and compel Facebook to provide the IP numbers of her abusers, and in June, Facebook was ordered to do so. Yesterday came the news that a man has been arrested in connection with Brookes’ cyber abuse, and it turns out, he’s a serving police officer. He is due to appear before magistrates in October.

We have spoken before about the Malicious Communication Act in the UK, and how it has been used, and we’ll be keeping a close eye on this case to see how it develops.

We have talked about tracking quite a bit lately. There sure is a lot of it going on! Earlier this week, Missouri became the 8th state to enact “Kelsey’s Law”, legislation which requires cellular carriers to provide police with a customer’s location information in the event of an emergency. Kelsey’s Law also shields the carrier from any lawsuits that could arise from them giving out this info. Fox Kansas City provides the background:

The law is named for [Kansas] teen Kelsey Smith, whose body was found four days after she was abducted from an Overland Park Target parking lot in June of 2007. Her body was found in a wooded area near Longview Lake after her cell phone company finally handed over cell phone records to authorities…

The law has been in effect in Kansas since 2009. Nebraska, Minnesota, New Hampshire, North Dakota, Hawaii and Tennessee have the law on the books as well.

Just before the law went into effect in Missouri this week, a class action suit was filed to try and stop it. Why? As their complaint suggests, the plaintiffs allege that there is a conflict with federal law – specifically, the Electronic Communications Privacy Act (1986). According to plaintiffs, the ECPA gives cellular providers the discretion to hand over customer information to law enforcement, and by requiring them to do so, this new state law violates the Supremacy Clause.

Per the Examiner:

“The law is obviously well-intentioned, and we all know that it arises from tragic circumstances,” said Bolivar attorney Craig Heidemann, who filed the lawsuit. But he said a patchwork of differing cellphone information laws in states could create uncertainty for phone customers.

“If I take my cellphone to California, I have more rights. If I use my cellphone in Missouri, I have less rights. So really it comes down to a privacy issue,” Heidemann said.

It’ll be interesting to see how this one plays out, and where public opinion will fall.

A ruling out of Tennessee last week [pdf] shows the power of user-generated content on popular websites, and how plaintiffs may struggle to refute opinions on these sites, no matter how libelous they may appear. It’s an interesting set of facts: Last year, the popular travel site TripAdvisor surveyed its readers to find the “dirtiest hotel in the country.” After the results came in, a press release from the website said:

This year, the tarnished title of America’s dirtiest hotel goes to Grand Resort Hotel & Convention Center, in Pigeon Forge, Tennessee. The southern belle hotel failed to charm TripAdvisor travelers; 87 percent of those who reviewed it recommended against staying there. The unpopular property elicited such hotel review titles as “Worst Hotel Stay of My Life,” “Stay Anywhere Else But Here,” and “Absolutely Horrible!”

For some reason, the owner of the Grand Resort Hotel wasn’t too thrilled with this honor, and sued, alleging that:

TripAdvisor … damaged and destroyed Grand Resort’s excellent reputation, goodwill, confidence, and business  advantage and caused great damages, economic and otherwise, to Plaintiff and Grand Resort.

The complaint alleged defamation, and so the main issue in front of the court was that of “Inherently Subjective versus Objectively Verifiable” statements. TripAdvisor combines the two types of statement – by taking user ratings (inherently subjective) and drawing conclusions, like “87 percent of those who reviewed [Grand Resort] recommended against staying there” (objectively verifiable). The court makes the point that this list, like all surveys, is just a display of opinion:

A reasonable person would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact; the reasonable person, in other words, knows the difference between a statement that is “inherently subjective” and one that is “objectively verifiable.”

It seems that Grand Resort was mostly just annoyed by the superlative “Dirtiest”, and found that to be something of an objective statement, but the court disagreed. While conceding that a user-based poll is “a poor evaluative metric”, the court concluded that no defamation had occurred. This is big news for any site that conducts surveys or polls, as they can feel free to name “Worsts Of…” as long as they make it clear that these accolades are solely the result of user opinions.

Source: Technology & Marketing Law Blog

We’ve heard of defendants being served over Facebook, but last week a Florida court addressed the legality of another non-traditional method of process. The Federal Commodity Futures Trading Commission wanted to file an action against this defendant, but couldn’t get to him through all the conventional channels. They did, however, have an email address for him, and successfully requested a motion to serve him though that account, having previously sent emails to – and received digital receipts from – that account. They were able to determine that defendant was not in the United States.

In allowing the email service of process, the court looked at FRCP 4(f)(3), which provides that an individual in a foreign country may be served “by other means not prohibited by international agreement, as the court orders.” The only international agreement considered was The Hague Convention, which was deemed not to apply since the defendant’s location was unknown, making traditional service impossible.

The court also found that, since the government had received receipts from defendant’s email account in the past, there was reasonable certainty that the service email would be seen, allowing defendant sufficient notice and an opportunity to respond.

Source: Internet Cases

A couple of weeks ago, we linked to a podcast from BlueTutor Technology, which discussed the emerging concern of digital assets, and how they affect estate planning. This issue came up again in an article last week in the WSJ’s Market Watch blog, entitled “Who inherits your iTunes library?” The focus here is on digital media libraries – if someone buys a lot of music, movies and books through iTunes, these assets should just go to their heirs after their death, right? I mean, that’s what would happen to physical books and DVDs?

Actually, no. The iTunes terms of service limit the use of the purchased files to the account holder that purchased them. Amazon, similarly, does not grant any ownership of purchased files to the purchaser. As Deirdre R. Wheatley-Liss, an estate-planning attorney in New Jersey, puts it, “The law is light years away from catching up with the types of assets we have in the 21st Century.”

The Market Watch article goes on to suggest a couple of ways to avoid these kind of problems, one of which involves buying some software that would safely archive all online account information for survivors. The other, more simple thing to do: Keep your iTunes Store login details somewhere safe, but where your heirs can find them and access your purchased assets after you die.

As someone who has spent hundreds of dollars on albums, premium podcasts, audiobooks and TV series on iTunes, I know from firsthand experience how important this issue is, and how it will only become more important in the future. Make sure you have a plan.

The result may have come in, but there’s no end in sight for stories about the Apple v. Samsung patents trial. The companies’ stock prices have either soared or plummeted, and with an injunction hearing due in September, both parties are trying to decide which devices they want to ban/not have banned. But going back to last Friday’s result, a few of the nine jurors have begun doing the media rounds, discussing how they reached a verdict in under three days, and how their deliberations went.

According to the interviews I’ve seen, one of the things that made a strong impression on the jurors was the Samsung internal memo that said, essentially, “be more like the iPhone“. There’s an eDiscovery lesson in here: be careful what you send to your colleagues! It may come back to cost you over a billion dollars.

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Last week, a coalition of children’s rights and privacy advocacy groups filed an FTC complaint against a handful of giant corporations, claiming that their websites market to children in a manner that violates the Children’s Online Privacy Protection Act (COPPA). That law, passed in 1998, requires websites to “to obtain verifiable parental consent for the collection, use, or disclosure of personal information from children”. (Children are defined elsewhere in the Act as those under 13).

But, the groups in this coalition argue that sites belonging to companies like McDonalds, Subway, Nickelodeon and Cartoon Network target children with their marketing campaigns, and encourage these children to provide their email addresses, and those of their friends. As the letter sent to the FTC [pdf] elaborates:

“Refer-a-friend” is a form of viral marketing that allows companies to leverage their relationships with children to reach other children. These companies encourage children who are playing games or engaging in other activities on their websites to provide the email addresses of their friends, then use those email addresses to send unsolicited marketing messages to the children’s friends. Along with email addresses, these companies may also collect other information of a sensitive nature from children. One website encourages children to submit photos of themselves, then sends them to their friends embedded within a marketing message.

With the help of sophisticated analytics partners, some companies also place tracking cookies on the computers of children who visit their sites. Not only are cookies placed on the computer of the child sending the refer-a-friend email, but they are also placed on the computer of the child who receives the email and clicks on the link. Cookies such as these may be used to track browsing behavior and construct marketing profiles of children.

The N.Y. Times wrote about this complaint, and reported that one of the accused corporations “said the accusation mischaracterized its practices, adding that the law allows an exception for one-time use of a friend’s e-mail address.” A full press release [pdf], and more information can be found at the Center for Digital Democracy’s website.

Earlier this month, the Tenth Circuit issued an opinion in Dalcour v. City of Lakewood. (PDF). As well as some Constitutional issues, the question of evidence spoliation came up. From the opinion:

During discovery, Plaintiffs repeatedly requested a printout of all the TASER logs from the date of the arrest, but the logs the city produced did not include any information related to the TASER use on [co-plaintiff] Avril. Plaintiffs alleged that the city’s failure to produce the relevant TASER log amounted to spoliation of evidence, entitling them to an adverse jury instruction that Avril was tased three times, or, in the alternative, a jury instruction that “the jury ‘may’ presume that the evidence was intentionally destroyed.”

The plaintiffs’ motion for an adverse jury instruction was denied in district court, although plaintiffs were allowed to question witnesses about the missing evidence. They appealed to the Tenth Circuit, which relied on a rule from Oldenkamp v. United American Insurance Co. (2010), which states:  ”For the [plaintiffs] to have the benefit of the type of jury instruction they requested, they must show that [the defendant] acted in bad faith.” Based on this, the Dalcour court held:

The record offers no indication of bad faith; at worst, it appears that the City may have been negligent, and it appears more likely that the records were lost due to a computer error. Certainly, the court’s finding that there was no bad faith does not rise to the level of clear error. Absent bad faith, the Plaintiffs were not entitled to an adverse jury instruction. Regardless, the court did grant Plaintiffs a sanction by allowing them to question witnesses about the missing evidence. Under our precedent, allowing the Plaintiffs to question witnesses about missing evidence is a lesser sanction, although the Plaintiffs do not appear to recognize it as such.

Having to prove bad faith is tough, so be careful in the Tenth Circuit when asking for adverse jury instructions.

There’s an unlikely battle brewing between YouTube, owned by Google, and a German man who lives at home with his parents. The latter, Philip Matesanz, is behind the website YouTube MP3, which allowed users to enter the URL of any YouTube video, and in a matter of minutes, it would generate an MP3 file derived from that video. Given that more and more people use YouTube to listen to music, you can see how the RIAA might eventually take notice of this.

Well, notice they did, and in June, Google sent Matesanz a cease-and-desist letter. Rather than just take his site down, Matesanz decided to fight the charge. He wants a more full explanation about what, exactly, he’s doing wrong, and so far almost 2 million people have signed his petition asking for a dialogue with Google.

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