Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Watching the Detectives

    Nov 25, 2015
    I wrote yesterday about an app I wanted to develop – the “you sure?” app would institute a delay between the typing of a post and the actual posting.  It’s designed to limit career threatening posts.  It is still in the very early development stage.   

    But here’s an app that really does exist. And it’s causing some controversy among the police community.   The “Mobile Justice” app allows the public to film police activity and automatically upload it to local ACLU servers.  The idea is to preserve the video in case of any dispute with the officer on the scene and possible destruction of the footage.  The app also provides alerts to other app users about the ongoing activity.  

    According to Techdirt, a lot of rank and file police have no problem with the app.  Given the ubiquity of cell phone cameras and the First Amendment right to record police activity, there’s no way to stop anyone from filming the activity.  And some cops have noted that they welcome the opportunity to display their appropriate behavior on camera.   

    Other police, in many cases police unions, however, have sounded doom and gloom alarms. The biggest issue seems to be the concern that the app’s ability to notify other app users about the ongoing activity will lead to “flash mobs” springing up whenever police try to make an arrest. It is on this basis, apparently, that  police in Minnesota are thinking about court action to block the app.  The problem with that approach is that the argument sounds compelling until you think about it for a minute.   

    First of all, in many police confrontations,  responding officers arrive with lights flashing and sirens wailing.  So the public has a pretty good idea of what’s happening and where.  Second, if people are inclined to notify others, they can send a text message quickly and easily.  So the capability to notify a “mob” already exists.  And third, most people aren’t like Batman sitting at Wayne Manor waiting for the bat signal to flash across the sky.  So even if the app broadcasts the location of the event, how many people realistically are going to drop what they’re doing and run to the scene.  And even that scenario assumes they are not engaged in school, work or some other activity they can’t easily abandon.   

    I don’t know if the “Mobile Justice” app is going to have enough appeal to really matter.  But  for a host of reasons, it’s probably best for the market to decide.
    Go comment!
  • An App Idea

    Nov 24, 2015
    Since I lack all technical skills I will not be able to develop this app on my own. But if anyone has the talent and is willing to help me, please let me know.  But here is my idea.  Let’s develop an app that provides a delay between the time someone types a social media post and the time they actually post it.  My app would be called “you sure?”  because it would literally say those words before the post goes up.       

    I mention my idea in light of another high profile person being disciplined as a result of an ill-advised tweet.  This time it was CNN reporter Elise Labott.  She recently tweeted, on her CNN account, this gem: “House passes bill that could limit Syrian refuges.  Statue of Liberty bows head in anguish.”  According this report, CNN suspended Labott for two weeks.   

    This post isn’t about the underlying issue.  I suspect the folks who read this post will be divided on the Syrian refugee issue.  But unless Labott actually saw the Statute of Liberty bow its head, she had no business inserting an editorial comment in a tweet, especially on her CNN Twitter account.   Her job demands objectivity and her tweet blew that up.    You’d  think people would know better.  But perhaps she was too enamored with her clever comment.  If a little voice had simply asked “you sure?” maybe she would have realized her error.  I think there’s a market here.   
    Go comment!
  • The NBA - It's Fantastic?

    Nov 10, 2015
    At least one fan may disagree with the NBA’s fan friendly slogan. Robert Jahoda, a blind man, recently filed a lawsuit in the federal district court for the Western District of Pennsylvania claiming the NBA has violated the American with Disabilities Act. Jahoda claims the NBA has failed to make its Web site fully accessible to him. According to the complaint, the NBA Web site has “barriers” that restrict Jahoda’s full and equal access to the site. The complaint further alleges that the site “has never had a plan or policy that is reasonably calculated to make its Website fully accessible to, and independently usable by, blind people.”

    Jahoda is relying on this section of the ADA, which provides:

    [i]n the case of violations of . . . this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities….Where appropriate, injunctive relief shall also include requiring the . . . modification of a policy. .  

    And Jahoda’s complaint is pretty specific about the relief he wants: 

    [Jahoda] seeks a permanent injunction requiring: a) that Defendant retain a qualified consultant acceptable to Plaintiff (“Mutually Agreed Upon Consultant”) who shall assist it in improving the accessibility of its Website so that it complies with version 2.0 of the Web Content Accessibility Guidelines (“WCAG 2.0 AA”)

    Congress passed the ADA in 1990. So I suspect the Internet was not at the top of its mind. The Act no doubt concerned itself with more “tangible” matters – like building accessibility and workplace accommodations. But laws evolve and change with the times. And it helps to remember the purpose of a law – in this case, the purpose was to make the world more inclusive. When viewed in that light, it makes perfect sense that a Web site be accessible to the blind and visually impaired.

    I don’t know enough of the facts to decide if Mr. Jahoda’s case is a slam dunk, but I hope the case gets resolved in manner that satisfies all concerned. And if your business operates a Web site, it’s worth your while to make sure it’s accessible to the blind and visually impaired. They would appreciate the assist. 
    Go comment!
  • Clickwrap Trumps Fraud Claim

    Nov 05, 2015
    Never underestimate the power of fine print.  A  North Carolina based federal court recently demonstrated the truth of this maxim and dismissed a couple’s fraud claim against the CertainTeed Corporation.  It’s especially true when the evidence demonstrates that plaintiffs actually read the fine print before agreeing to the deal.  

    CertainTeed manufactures building materials, including vinyl siding. Certain Teed also maintains a Web site, where it offers a search tool that allows customers to search for contractors in their area, thereby facilitating the connection between potential customers and builders. CertainTeed list contractors on its website after the contractor completes training courses on the proper installation of CertainTeed products, including vinyl siding, trim, fencing, and decking. After successfully completing certain courses, contractors receive a personalized certificate and are listed on CertainTeed's Web site under the designation of "Master Craftsman."
    Consumers can search the listed professionals on CertainTeed's website by name or by the product in which they are certified. To view their search results, consumers must "Accept" the search tool's "Terms and Conditions," which state, among other conditions, the following:

    Although we take certain steps to examine the credentials of our listed service professionals, CertainTeed makes no guarantees or representations regarding the skills or representations of such service professional or the quality of the job that he or she may perform for you if you elect to retain their services. CertainTeed does not endorse or recommend the services of any particular service professional.

    In early 2014, Timothy and Angela Solums considered various contractors to install new vinyl siding on their home. As a part of their search, they contacted a building contractor called Superior Home Improvement. The owner of Superior Home Improvement, Donald Follett, visited the plaintiffs' home to provide a consultation and price quote, and he "strongly recommended CertainTeed's product." Follett told the plaintiffs that he was a certified Master Craftsman for vinyl siding and that they could verify his credential on CertainTeed's Web site.

    According to the Solums, they decided to hire Follett and his company based on his CertainTeed master craftsman certification.  And as you might have guessed, things didn’t go smoothly.  According to the Solums’ complaint, Superior Home Improvement purchased CertainTeed vinyl siding for use on plaintiffs' home, but Superior Home failed to properly install the product. Thus, plaintiffs had to hire a second contractor to fix the siding on their home, incurring additional costs. The Solums sued CertainTeed based on CertainTeed’s alleged fraud. Specifically, in the Solums’ view, CertainTeed represents that it "examines the credentials of the service professionals ... it endorses,"  that "Master Craftsmen Successfully complete a program course to become certified," and that "only advanced building professionals who demonstrate a high level of knowledge and ability to install CertainTeed building products earn this Master Craftsman status." Plaintiffs allege that Certain Teed "purposely misleads consumers into believing that the Master Craftsman certification is more prestigious than in actuality," and that Certain Teed does not examine the credentials of service professionals that it lists as Master Craftsmen "in any meaningful manner."

    CertainTeed filed a motion to dismiss the complaint. The court granted it. In part, the court found that the Sloums could not have reasonably relied on the alleged representations based on the disclaimer -- "CertainTeed makes no guarantees or representations regarding the skills or representations of such service professional or the quality of the job that he or she may perform for you" – plainly visible on the Web site.  And the Solums’ very own complaint demonstrated they’d read the disclaimer. One of the alleged misrepresentations set out in their complaint came directly from the disclaimer. In addition, the Solums themselves completed the course requirements and became “master craftsmen” themselves. 

    This case demonstrates how effective disclaimer language can ward off fraud claims. It’s especially true when there’s evidence that the user actually read it.  Keep that in mind when designing your Web sites!  
    Go comment!
  • Big Consequences May Flow From Spokeo Case

    Nov 02, 2015
    This week’s oral argument in Spokeo, Inc. v. Robins  isn’t quite like some of the Supreme Court cases we’ve gotten accustomed to over the years.  This one isn’t going to draw demonstrators and it won’t be the subject of much conversation on Fox News or MSNBC.  But it may have enormous consequences nonetheless.   

    The issue in Spokeo isn’t all that sexy.  Actually it’s not sexy at all.  It concerns standing.  That is, who has the right to bring a lawsuit and under what circumstances?  

    Spokeo operates a “people search engine”—it aggregates publicly available information regarding individuals from phone books, social networks, marketing surveys, real estate listings, business Web sites, and other sources into a database that is searchable via the Internet using an individual’s name, and displays the results of searches in an easy-to-read format.  

    Thomas Robins filed a class action against Spokeo, alleging that Spokeo is a “consumer reporting agency” that issues “consumer reports” in violation of the Fair Credit Reporting Act. Robins alleged that the search results associated with his name included inaccurate information indicating that he has more education and professional experience than he actually has, that he is married (although in fact he is not), and that he is better situated financially than he really is.  

    According to Robins, Spokeo violated the FCRA when it published the inaccurate information.  The FCRA gives statutory remedies even if the subject of the violation suffered no “injury in fact.”  Robins wants to join with any other person who had a similar experience and proceed with his action.  

    The trial court granted Spokeo’s motion to dismiss Robins’ complaint, but the U.S. Court of Appeals for the Ninth Circuit reversed that decision.  Spokeo successfully petitioned the United States Supreme Court to review the case.  Oral argument is this week.  The case may divide the justices along ideological grounds – the conservative wing will likely support adherence to a more rigorous standing requirement, and the liberal justices likely will be more open to a looser standard.  All of which means it may come down to what Justice Kennedy decides. Sometime in 2016, we’ll learn the final answer.   

    If the Supreme Court upholds the Ninth Circuit, it could have a major impact on data privacy litigation.  So far, class action plaintiffs have struggled with demonstrating actual injury from a hacking.  Courts, for example, have ruled that merely fearing an identity theft occasioned by a breach doesn’t confer standing.  But if victims of a breach can establish that the breach itself constitutes a violation of some federal or state consumer protection law – they would be able to proceed with class actions more easily.  And that could lead to a big spike in class action lawsuits across the country.  

    This case is flying under the radar, but that doesn’t make it any less impactful. 
    Go comment!
  • Kentucky Drone Target Practice Update

    Oct 29, 2015
    A little while back, I wrote in our firm’s InfoLaw newsletter about a man in Kentucky who was arrested for shooting a drone that was flying over his property.  As an update, a judge recently dismissed the charges.   The man, William Meredith, was charge with three separate offenses --  criminal mischief, wanton endangerment and discharging a firearm within city limits.  See Eugene Volokh’s post on it, linked above, for more detail.  It looks like Meredith may have had a defense to the criminal mischief charge based on his belief that he had the right to shoot the drone down.  And the facts may simply not have supported the wanton endangerment charge since, it’s not clear who was actually endangered.  But the basis for the holding seems to be the Judge’s conclusion that the drone was violating Meredith’s privacy and that gave Meredith the right to blast away.   

    I’m not advocating that anyone start aiming for drones. It may yet be a federal crime. But having said that, don’t be surprised if judges find the whole concept of drones hovering over private property a little creepy. Which may make them a little more forgiving when homeowners take matter into their own hands. 
    Go comment!
  • People Who Need Peeple

    Oct 23, 2015
    My colleague Nathan Swehla recently mentioned to me an app called “Peeple.”   The app allows people to review “ordinary people” in three categories: personal, professional and dating.  The stated goal of the app is to highlight the best in people and allow others to make new friends and business connections.   

    Not everyone is convinced.  The app certainly poses a risk of abuse.  I don’t know if you’ve looked online any time recently, but not everyone on social media is interested in accentuating the positive. And offering up a platform to “review” people seems like an opportunity for abuse.   

    And that begs the question whether the app will pose any new legal issues in terms of defamation or privacy invasion.  And the answer I think is “no.”  The app allows for the publication of potentially actionable comments.  But there are already plenty of platforms where people can make actionable comments.  Any interactive social media site offers the opportunity for users to get themselves sued.  I mean, there’s even a term for it – “Twibel” – i.e. libel on Twitter.   So Peeple really doesn’t change the landscape.  And we know that people can use existing platforms to post embarrassing, intimate photos and videos of people – we call that “revenge porn.”  So once again, the existing online platforms allow for invasion of privacy too.  

    And the fact that Peeple invites users to share their opinions about other people doesn’t mean that the users are guaranteed off the hook for their comments.  While true opinions are not actionable in a defamation proceeding, that doesn’t mean a Peeple user could avoid liability merely by starting a review off with the words “In my opinion . . . .”  If the Peeple review contains verifiable facts, their inclusion in a “review” won’t shield them.  So if someone were to take to Peeple and write something like “Jack Greiner’s blog is dull, soulless and virtually unreadable” I’d be hurt, but I wouldn’t have a claim.  That harsh assessment is true opinion  -- I can’t prove it’s false.  Unfortunately.  

    But if my new Peeple friend said in the review “it’s obvious that Greiner relies on plagiarism in his posts” that would be a different matter.  I don’t plagiarize and I could prove that.  So saying I do, even in the context of a review, is stating a verifiable fact.  I’d be able to sue over that.  And probably win.   

    And if a Peeple reviewer, in the course of a review, includes private, intimate information about the review’s subject there is no protection offered by the fact that the disclosure was in the context of a review.  Invasion of privacy is invasion of privacy.       

    So Peeple may strike some folks as kind of creepy, but it’s not really revolutionary.  And it won’t create any particularly new law.  The communication methods may change, but the fundamentals remain the same. 
    Go comment!
  • Good News and Bad News from North Carolina

    Oct 20, 2015
    I discovered today that I have readers in North Carolina.  And they are not related.  That is the good news.

    The bad news is I learned this fact thanks to a mistake in my October 16 blog post.   In that post, I noted that the North Carolina Bar Association prohibits North Carolina lawyers from engaging in keyword advertising.  That prompted my new friend Russell Rawlings, the Director of Communications for the North Carolina Bar Association to write this note:

    There is no such entity. You are referring to the North Carolina State Bar, which regulates the practice of law in North Carolina, and not the voluntary North Carolina Bar Association. Thanks for making a correction at your earliest convenience.

    No problem.  I regret the error. And just to make it up, here’s a Jack Out of the Box song dedication in Russell’s honor:

    Go comment!
  • Common Sense and Lawyer Advertising

    Oct 16, 2015
    I recently blogged about a South Carolina lawyer who got into trouble for using keyword advertising.  In that instance, the South Carolina court found the particular way the lawyer used the method was deceptive.   

    But in North Carolina, lawyers are banned from using the method entirely.  According to the North Carolina State Bar Association:  “The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer's website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.”  

    That seems a bit extreme to me.  When you think about it, online keyword advertising is just a slightly more advanced method of the Yellow Pages (I felt compelled to link to Wikipedia here because I’m afraid younger readers won’t know what the Yellow Pages are).   With the Yellow Pages, you looked a keyword, i.e. “lawyer” and found numerous options listed under that particular word.  In the online version, when you enter a word, a number of options come up, including clearly marked advertisements.  Not all that different really.  

    The resistance to keyword advertising is part of the evolution in the legal profession.  It wasn’t all that long ago that lawyers were pretty much forbidden from advertising at all.  But thanks to a 1977 U.S. Supreme Court ruling those days are over.  The First Amendment allows lawyers to speak, and that includes advertising.  Here’s a piece that lays out the history very well.  It’s interesting that most of the complaints about lawyer advertising come not from consumers, but FROM OTHER LAWYERS.  That should tell you something right there.  

    Now, I can’t say that I love every lawyer commercial I’ve ever seen but I think lawyers have a right to produce non-misleading advertising.  And that includes keyword advertising.
    Go comment!
  • Barney Fife Comparison Does Not Equal Defamation

    Oct 15, 2015
    The Andy Griffith Show premiered 55 years ago.  But its legacy lives on. The most recent example comes from a libel lawsuit in Kentucky.  

    A Louisville radio personality named Terry Meiners got a speeding ticket courtesy of Louisville police officer Sam Cromity.  Like many of us, Meiners claimed the ticket was unjustified.  Unlike many of us, Meiners had several thousand watts available to vent about it.   

    Meiners called Cromity an “out and out liar” and ”delusional.” He also referred to Cromity as “Black Car Barney.”  That was a reference to Barney Fife, the incompetent deputy made famous by Don Knotts.     

    And speaking of incompetent, it seems Cromity found himself on a losing streak at the courthouse.  First, Meiners got a acquitted on the speeding charge.  Undaunted, Cromity filed a libel case against Meiners based in part on the “Black Car Barney” comment.  The trial court was unimpressed.  It found Meiners’ comments constituted “commentary involving a matter of public interest and . . . non-actionable opinion.”  The court of appeals recently affirmed that ruling.  

    The court also commented on the Meiners’ acquittal, noting that while it did not absolutely prove the truth of Meiners’ comments, it did “not weigh in Cromity’s favor.”    In retrospect, it’s too bad someone didn’t tell Cromity to nip that lawsuit in the bud.  
    Go comment!
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