German court decides Parents can’t access deceased child’s Facebook account

Facebook

A German appeals court has decided that the Facebook account belonging to a deceased minor cannot be accessed by the deceased minor’s parents, according to German business website Handelsblatt. A couple in Berlin sued for access to the Facebook records of their daughter after she was killed by a subway train in Berlin, hoping to find clues as to the events leading up to her death. They were particularly interested in the chat records, which they thought might provide clues as to whether the daughter’s death might have been a suicide.

The lower court decided for the parents, determining that the Facebook account was part of the deceased minor’s estate. In deciding to appeal, Facebook, the subject of much criticism in Germany for its handling of data privacy, found itself in the unusual position of defending those same rights. The appellate court decided against the parents, and refused access. It appears likely that the parents will appeal the decision.

In the United States, Facebook generally does not allow parents access to a child’s account, deceased or not. Facebook does allow parents to request that the account be terminated, rather than leaving it online in “memorialized” mode, and in rare instances Facebook will honor requests for account data by parents or other authorized individuals.

At the rate we’re going, we’ll soon be traveling with books and cassettes

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Let’s not go here again

As I watched the luggage carousel spin slowly around I was pretty well aware what I would see there – nothing, or at least nothing which belonged to me. We had barely made our connection in Frankfurt, after circling for hours, and the only thing which made it through to Philadelphia was a cat. I don’t even like cats.

No problem, right? We could just run out and buy luggage on the airline’s dime.

Or not. Airline liability for lost or damaged baggage on international flight is regulated by a treaty called the Warsaw Convention, which limits airline liability for checked baggage significantly. According to Delta’s website, that’s $9.07 per pound up to a maximum of $640. Normally the answer is simple – if it’s valuable, don’t check it. The proposed ban on laptops and tablets for flights to the US from Europe, however, adds a new wrinkle to that otherwise simple advice, since most business travelers don’t really have an alternative to traveling with a laptop. Most road warriors won’t be terribly happy about seven to nine hours of lost work time, to say nothing of that low-res airline entertainment. They’ll be even less happy if they can’t retrieve the laptop at the end of that long flight.

The bigger issue, of course, is security. A lost laptop means lost data, and lost data can result in all sorts of headaches depending on what’s actually on the laptop. While encryption can limit the damage, that still won’t compensate for the loss of productivity for business travelers who depend on their laptops for their daily work.

While business travel won’t stop, the laptop ban combined with other issues which make international travel more onerous may well hit the bottom line of airlines with international routes. It will also increase the interest in everything from insurance for lost luggage to rentals of laptops and similar equipment overseas (which brings with it additional security concerns). Some frequent travelers may even consider storing electronics at offices or apartments overseas, to ensure that they are able to get back to work quickly upon arrival.

In the grand scheme, however, Skype begins to look pretty attractive when the alternative is eight hours of airline entertainment or watching TV on a cell phone followed by a full cavity search on arrival.

Of course, you could always fly via Canada.

Germany’s DeNIC offers (a bit) more privacy for some registrants

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With the increasing focus on privacy in Europe, and ongoing challenges to the US-European “Privacy Shield” agreement, domain name registrants from Europe see domain names as (yet another) weak link in privacy rights. They wouldn’t be wrong in that – in order to protect domain name registrants in the case of the failure of a domain name registrar, all registrars are required to put the underlying registrant data in escrow with an accredited data escrow provider. Until recently, however, the only ICANN-approved data escrow provider has been the US company Iron Mountain, and as a result all of the agreements (and the underlying data) were subject to US law. That, of course, means they were subject to US law enforcement and civil litigation demands as well.

That has recently changed. According to heise online (in German), DeNIC, the German company in charge of the .de country level domain, has recently been accredited by ICANN as a third party data escrow provider for registrar data. DeNIC’s accreditation provides a European alternative to Iron Mountain, and provides some assurances that European data remains in Europe subject to European privacy laws. While that’s an improvement, domain registries must also escrow data, and there’s only a single provider for those services as well (can you guess who that might be?). DeNIC, looking to close that weak link in data protection, is actively seeking accreditation there as well.

While this particular service may not impact US business to any great extent, it does demonstrate an increasing interest in European alternatives under the current political climate. No doubt companies like XING (a German LinkedIn alternative) and UK online bookseller Wordery will seek to capitalize on increasing European concern over US service providers.

At the rate things are going, US disregard for privacy may create the European Internet champions that European lawmakers could not.

For more on DeNIC’s accreditation and continuing efforts, see this press release.

So long e-signatures, it was nice to know you.

DocuSign screenshot

We recently bought a house or, more accurately, a bank bought a house which we own a teeny-tiny part of. That, of course, resulted in an unending series of requests by mortgage companies, banks, title companies, realtors, sellers, etc. for signatures on long and seemingly duplicative documents. In most of those cases, our signatures were obtained via DocuSign. That’s become pretty standard practice in the real estate industry these days, and also in other industries which require large numbers of signed documents. While it’s annoying, I suppose it beats having an equally large pile of signed originals in a file somewhere.

Or maybe it doesn’t. According to a recent memorandum in a California court, however, a “signed” DocuSign document might not be enough. The judge in that case sanctioned an attorney for relying on DocuSign signatures in the context of bankruptcy law, pointing specifically at a requirement that electronic signatures are only valid if a copy of the “original” signed document was retained. DocuSign, of course, has based its entire platform on the idea that the digitally signed document is the original, which may now be in serious doubt.

For now, the memorandum serves as a reminder that users of digital or e-signatures have to be certain that the laws pertaining to that particular transaction allow e-signatures without a “wet signature” to fall back on in the event of a dispute. Bankruptcy lawyers in particular, take note. That being said, the logic behind the memo calls into question the entire premise behind electronic and digital signatures and, if followed, may end up being a really good development for paper companies. After all, if I sign by putting my name following /s/ in an e-mail, or using the signature function in Apple’s Preview application, the potential authentication issues raised in the memo are exactly the same as raised in this case.

I’ll keep that in mind if we have second thoughts about this whole home-ownership thing.

Hat tip to Whitney Merrill (via Twitter, @wbm312)

How about Estonian law with your morning cuppa’

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It’s like the Hotel California, you can subscribe any time you like but you can never leave.

It’s not often you start the morning with an international legal dispute, and that before one’s morning coffee. This morning, from the kitchen, I was treated with the dulcet tones of my wife arguing with the London Times about cancellation of her online subscription. It turns out they only accept cancellations from the US via passenger pigeon on odd Tuesdays which have a full moon, and then only when written in the blood of a recently slain unicorn. Ok, not really, but as we haven’t actually figured out how one successfully cancels a subscription, that may in fact be the cancellation policy. Pro tip – don’t subscribe to the London Times.

Anyway, the interesting thing about that kerfuffle is the degree to which the average consumer worldwide is entering into contracts with companies in other countries, ostensibly under the laws of those countries. As consumers, however, those individuals remain protected under the consumer protection and other laws of their respective countries (or, in the case of the US, an odd patchwork of federal, state, and local laws). As a result, even as simple transaction as a newspaper subscription or Facebook registration can give rise to significant legal cases with an international impact.

Many of those cases involve privacy and the EU-US privacy shield. Europe isn’t alone in its concern for the privacy of citizens, however, with a new decision extending the protections of Canadian Privacy to data disseminated outside of Canada (hat tip to Daniel Solove). While the US doesn’t really care as much (or perhaps at all) about privacy, there are laws like the Speech Act which attempt to protect US residents (in this case writers) from the effects of foreign laws which are against US public policy (in this instance, the right to free speech).

There are a host of other issues which arise from these contracts, however. Do companies like the Daily Times understand and follow US legal requirements like the Fair Debt Collection Practices Act or, in the case of selling (and upselling), the Telephone Consumer Protection Act? Even if they do, how does one collect a relatively small debt in a foreign country in an efficient and cost-effective way? In the other direction, Europe has extended its controversial “right to forget” worldwide, creating a compliance nightmare for Google and other big US tech companies, and an unresolved conflict for others without as much skin in the game in Europe.

The Internet makes international business possible from your kitchen table. What that means for public policy and protection for the consumer remains largely unresolved.

A cold wind on privacy

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Not just your moment; yours, Verizon’s, Amazon’s …

Standing outside in the chill of what passes for “spring” these days, with a cold breeze numbing the end of my uncovered ears (it’s SPRING for God’s sake), I listened to my fellow soccer parents discussing the merits of the Senate’s recent vote to rescind the FCC’s as-yet unimplemented rules on privacy for ISPs. Overall, I think most of the parents were pretty ok with the loss of some privacy in exchange for the perceived benefits of data sharing. Most of that had to do with the cool things technology can do when provided with access to data, like make sure your latté is ready before you actually arrive at Starbucks in the morning.

Listening, I was trying to think of why I’m not on board with that logic (other than the fact that I’m not a huge latté fan). Aside from the many concerning ways in which ISPs can and have used data, the bigger problem would seem to be that there’s no real guarantee that the data will remain with the ISP or their marketing partners.

First of all, big companies of all stripes are pretty terrible at keeping data secure. That means that, in addition to that cool relocation feature which allows you to pre-order a late on the drive to that early-morning soccer tournament, you may be letting hackers from the Ukraine into details about your life which may (or may not) allow them to hack into your bank accounts or determine the content of that highly sensitive e-mail you received.

Secondly, as lawyers well know, data of all types is discoverable in litigation, so those “innocent” late night visits to Ashley Madison may not be as private as you think they are. While much of that data is already available and discoverable from your e-mail provider or home computer, giving ISPs an incentive to keep and distribute that data certainly won’t improve matters any. Increasing the amount of data available also means more data available to the government, and while it’s nice to believe that only matters if you’ve done something wrong, that’s not always true. In Europe, the public and the courts have been fighting against mandatory data retention rules, even as the US arguably incentivizes the private collection of data.

For or against, there’s not much you can do to protect yourself against data collection – most Americans have limited choice in ISPs, and some have no choice at all. Short of running everything through a VPN, or simply not using the internet, it looks as though consumers have to get used to the idea that their traffic will be collected and shared by ISPs, the government, and pretty much everyone else who has access to it.

DMCA – After the counternotice

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Sometimes throwing down the gauntlet does more harm than good

Once the counter notice is sent things get tricky – many customers think that, having sent the counter notice, the materials can be returned to the website immediately, but that’s not true. The materials must remain offline for ten days after receipt of a valid counter notice, whether they are infringing or not. This provision is definitely favorable to copyright holders, and annoying to those who have to work around the removal for that ten day period. That waiting period can be particularly impactful when the content is timely, since that ten day window can be just enough to ensure that the content is irrelevant by the time it can be returned to the website. Not surprisingly, we see a lot of questionable DMCA notices during tight political races.

Even more important to remember, if you’re the one sending the counter notice, is that you are essentially throwing down the gauntlet and daring the other party to sue you, since that’s the only way to prevent the return of the materials to the website. Before sending that counter notice, you might want to consider long and hard whether (1) the other party is likely to sue and (2) whether you can afford to defend yourself (and deal with months or even years of legal aggravation) just so that you can use that photo of a kitten cuddling with a hamster on your blog. All kidding aside, lawsuits are painful and expensive, and potential damages for copyright cases can be astronomical, so sometimes it’s better to fold even if you are in the right.

Having received the valid counter notice, the hosting provider will forward it back to the sender of the original notice, which starts the clock ticking on the ten day waiting period. At that point the copyright holder has to either sue or accept that the materials will be put back online. While the law tends to be on the side of a valid copyright holder, the same caveats as above apply – lawsuits are an expensive and messy way to resolve a dispute, and collecting on a large judgment from a blogger with an audience of his mother and three of his best acquaintances may be more trouble than it’s worth. Just today I received a withdrawal of a counter notice against a very large company, which strongly suggests that, rather than sue a small website operator, the company reached out and came to an amicable resolution of the copyright dispute.

That being said, sometimes a lawsuit is the only way to ensure the continued removal of the material. Once the lawsuit is filed, the provider of the notice must provide proof of the lawsuit to the web host, who will forward it to the customer. At that point the web host’s job is done, at least until the lawsuit is complete months or years down the line.

Hey, I’ve lost my company’s domain name!

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I love me some VT 220 (ok, faux VT 220, but close enough)

The registration system for domain names isn’t really set up for corporate ownership, since the “owner” of a domain name is typically the person who is listed as registrant rather than the corporation. The down side of this system is something we see all the time, particularly with small companies – a domain name is registered by a well-meaning, tech-savvy employee (all too often in his or her personal account) and, when that employee moves on, the company is stuck without control over critical domain names and related accounts. If the employee is fired, it’s even worse, since the now-disgruntled employee may well have control over the company’s entire online presence for an indeterminate period of time.

While there’s no silver bullet here, there are a few best practices which make it easier to regain control over a domain under the control of a wayward (or simply unreachable) ex-employee. Those are:

  • Make sure the company name and address is listed as the Registrant, along with the name of an officer who is most likely to remain with the company. The tech savvy employee can be listed as administrator, to facilitate management of the domain without jeopardizing ownership.
  • Corporate web assets should be held in an account which is in the company’s name and paid for with a company credit card, and should be kept separate from other business or personal websites and domains.
  • Have an agreement in place making it clear that, upon termination of employment for any reason the domain name registrant and admin are to be changed to an officer of the company’s choosing. Ideally, this should be in a standalone agreement so you can provide it to the registrar without divulging hiring or salary information.
  • Make sure renewal notices and the like go to a generic e-mail address, ideally one which is monitored by more than one person, so that termination or resignation of an employee doesn’t result in a lapsed registration (although there are downsides to this as well).
  • Make sure someone other than the admin knows the password to the account (but be judicious, you also don’t want the password becoming generally known). For particularly active accounts, you may want to request a regular update confirming the password and listing all domain names along with expirations dates for the corporate account.
  • Make sure all domains are registrar locked against transfer and deletion

The above isn’t foolproof, since a knowledgeable or well-placed employee can manage to retain control no matter what the circumstances, and given that registrars differ in how they handle requests relating to domain name ownership. Also, be aware that some of the above suggestions may have downsides as well, so consider what’s best for your organization when determine who has access to accounts and how.

Blocking the ad blockers

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Munich (but not the appellate court)

Advertisers don’t much like adblockers, and publishers in particular see them as a drain on revenue necessary for the production of content.

One of the most popular ad-blocking plugins is the not-so-cleverly-named Adblock, by the more cleverly named German company Eyeo GmbH, based in Cologne. According to a recent report by German IT news portal heise online, a recent attempt by three German media outfits to take Adblock offline has met with skepticism by Munich’s appellate court. The plaintiffs (which include my “other” hometown newspaper, the Süddeutsche Zeitung, threw everything they could at Eyeo, from copyright infringement to antitrust, but the court doesn’t seem to have bought into it. At issue, among other things, is the “whitelisting” process which allows Eyeo to make money on blocked ads.

This decision may vindicate Eyeo’s partial loss against Axel Springer, and follows a win in Hamburg against Spiegel Online. Either way, it looks as though efforts to block the adblocker will make their way to Germany’s Supreme Court in Karlsruhe sometime next year. Having failed in the courts before, however, German media isn’t putting all of their eggs in one basket. In addition to technical measures, the industry group for German newspapers is also pursuing the legislative route to see off Adblock.

Efforts to block Eyeo in France also seem to have faded, and in the US there has been little in the way of legal action against ad blocking software, probably due to different antitrust and competition laws. Thus far Eyeo has won more of these battles than it has lost, so adblocking will remain a thorn in advertisers’ sides for some time to come.

DMCA – The counternotice

In this brief series on the DMCA notice and takedown procedures you’ve learned how to draft a (proper) notice and get it to the designated agent. Upon receipt of the notice by the designated agent, he web host will now review the materials and, if the notice is correct, ensure that the materials are removed from the website. It’s important to remember – the host is not checking to see if the copyright is infringed, it’s merely checking to see that all of the required statements are in the notice. If the notice is proper, in order to retain immunity the materials have to come down, even if they ultimately don’t infringe on anyone’s copyright. While that may seem unfair to customers who aren’t infringing on copyrights, it’s Congress’s compromise to ensure a (relatively) simple process.
The web host will forward the notice to the website owner, at which point the website owner can (and should) remove the allegedly infringing materials, since otherwise the host will have to do so. If the website owner wants to put the materials back online, the next step is to send a counter notice to the DMCA designated agent.

The elements of the counter notice are as follows:

(A) A physical or electronic signature of the subscriber.

As with the takedown notice, this is pretty much anything you intend to have serve as a signature.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

This element will be a repeat of the third element of the original notice, listing the links which lead to the allegedly infringing materials in their original location before they were removed.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

As with the notice, this is language which simply has to be in the counter notice, so this will typically read something like “I have a good faith belief that the material was removed …” and then the rest of the paragraph.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

This one is a bit of a mouthful, but it’s actually pretty simple. First, the counter notice must contain contact information for the person providing the counter notice. Interestingly, whereas the notice provisions don’t necessary require any particular contact information, as long as the information is “reasonably sufficient,” the counter notice provisions specifically require the “name, address, and telephone number” of the person providing the counter notice.

The second part is another repeat of the language in the statute, although it’s a little more tricky. For counter notices filed from an address in the US, you might see something like “I hereby consent to the jurisdiction of the Federal District Court for the judicial district for the above address, and I agree to accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.” It’s not pretty, and it would read better if you replaced the generic language with the actual judicial district (e.g., Eastern District of Pennsylvania), but most non-lawyers won’t want to to figure out the specific district in which they reside. Also, if the wrong district is named, the host might deem the notice improper and ignore it.

While US residents are consenting to be sued in their own home jurisdiction, non-US-residents consent to any location in which the web host (rather than the person who provided the notice) can be sued. That statement might read something like “I hereby consent to the jurisdiction of Federal District Court for any judicial district in which the service provider may be found, and I agree to accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.” Again, you could put the actual service provider name and judicial district in the counter notice, but many service providers will be amenable to service in multiple jurisdictions, so it’s probably best to leave the generic language in there.

It’s very important to note that merely sending the notice does not result in the return of the allegedly infringing materials to the website – we’ll discuss this in detail in the next post, but the materials must remain offline for a period of time before they can be returned (if at all).