Articles Posted in Internet Law

We’ve discussed the nature of this before, but the EU-US Privacy Shield has gone into full effect. This program essentially restricts the ability of U.S. commercial entities to do business in the European Union due to the ability of the U.S. government to use international businesses to improperly conduct surveillance on citizens within the European Union.  In response, the European Union removed the blanket ability of U.S. companies to do business with European Union members as part of the Safe Harbor provision. The Safe Harbor provision was loosely drafted in its self-certification, prompting the switch to the Privacy Shield today. As it stands now, this program is still in its fledgling stages, with registrations beginning on August 1, 2016.  These registrations begin with a murky area of international commerce. So, how could one join the privacy shield? Is your organization even be eligible? What might happen if an organization refuses to participate?

How can you join the Privacy Shield?

The Privacy Shield is open to any business that is subject to regulation by the Federal Trade Commission (FTC) or Department of Transportation (DOT).  In general, conducting business and affecting commerce would qualify entities under this regulation, although, there are some exceptions, such as, financial institutions, labor associations, and non-profit organizations that may not qualify.  After meeting the base qualifications, an entity may then “self-certify” by coming up with a plan that meets the basic requirements of the EU-US Privacy Shield.  This would include measures to protect the data of European customers and employees stationed in Europe, even after ending participation in the Privacy Shield.

The internet with its “remix culture” often appropriates images and videos to create new things. Yet, this also includes personal images. Be it “Bad Luck Brian,” “Overly Attached Girlfriend,” or some exploitable image, how could one protect his or her personal image from being remixed and exploited for a financial incentive?  This is also a question appearing outside of the internet in particular with book covers and music videos. How might one protect his or her own face and body? What is the best method of protecting one’s image?  Is this related to the right of privacy or right of publicity?

How could a person protect his/her own face and image?

Outside of simply preventing your image to be published online by avoiding social media, preventing photos to be taken, or spending your days behind a mask, the only way to protect your image comes up after an incident has occurred online.  The right over one’s own image can be boiled down to privacy claims with three main types of laws protecting it. First, the right to privacy. Second, is biometric privacy law.  Third, is the right of publicity. Of the three, biometric data is the newest with statutes in Illinois and Texas and minor provisions drafted in Iowa, Nebraska, North Carolina, Oregon, Wisconsin, Wyoming, and New York.  The idea of a biometric privacy law is that it creates a “privacy right” over an individual’s biometric features (e.g., fingerprint, retina, iris scans). Yet, ultimately this would only serve to protect one from larger entities.  To that point, the law in Texas lacks a private right of action but permits the State Attorney General to instigate legal action.

In the current news is another emerging technology, which is called Augmented Reality. In general, augmented reality (“AR”) uses technology to artificially create the reality a person experiences. For example, this could be a pair of glasses that shows a person’s contact information when his/her face is seen, or mobile apps, like Pokemon Go, which interact with your location and surroundings to create aspects of the game. Yes, Pokemon Go, the new mobile app juggernaut that has emerged into the market, is something that up to now, hasn’t taken place on such a massive scale. Yet, this new application has created unique legal questions. What can we do with this experience that encourages people to travel all over? How might one protect his/her property from players? Is there any way to stop Niantic, the creator of the game, from using your property in the game?

How does Pokemon Go work?

Before addressing the legal problems that arise from the game, it’s important to know how the game works. As stated before, Pokemon Go is a form of AR, using GPS data from the location to help generate the variety of creatures that can appear in a location.  In addition, certain locations and landmarks are coded to either give players items, or act as “goals” for them to capture for a team. There are small images on the markers, with titles and occasionally small descriptions. While many of these locations may be in public, or on publicly-accessible property, there are others that appear to be on privately owned or closed-off property.  While it appears that there are some deals with Niantic to add goals at the locations of real-world partners, however, it is not the norm.