By David Kluft, Peter Lefkowitz, Martha Mazzone, Zick Rubin and Tom Hemnes
This December marks the 10th birthday of the founding of Linkedin.com. Next year, 2013, will witness the 10th anniversary of both the public launch of Myspace.com and the initial launch of Facebook (nee Facemash) at Harvard. While the world celebrates the history of social media, the BBJ is taking a few moments to consider its future impact on the law.
To get the ball rolling, we solicited five leaders and practitioners in areas currently affected by social media to offer thought pieces containing their own predictions (or wild speculations) about how this phenomenon will affect the law in the future. We asked them to use 2020 as reference year, but some of the predictions went a little further.
There is no wrong answer . . . yet.
Cyborg Evidence, by Dave Kluft
The technology exists in 2012. Funded by commercial and military interests, universities and hospitals are developing neural interface systems using hardware developed for electrocorticography, electroencephalography and functional magnetic resonance imaging. These technologies allow human brains to interface with computers by translating neurons into software commands. By 2006, a subject at Brown University, using technology funded by the Department of Veteran Affairs, played computer Pong with his mind. In 2012, paralyzed patients can employ neural impulses to direct a prosthetic hand to raise a coffee cup. The principal application of this technology is for severe epilepsy and spinal cord injuries, but the military also is developing “telepathy helmets.”
Application to consumer electronics follows. In 2012, effective neural interface technology requires invasive implants. By 2017, these can be replaced by headsets and earpieces. In 2018, the Wall Street Journal reports that social media companies have been making substantial investments in portable non-invasive cyborg technology.
In 2020, a neural interface social media site is beta tested. Users are able to share simple binary thoughts (e.g., Like/Don’t Like). By 2025, more advanced software allows the recognition of more complete thoughts. Many users allow their thoughts to be transmitted contemporaneously. By 2028, new software translates visual stimuli received by the human retina into rough still images: a user’s perception of a dog is recorded and published as a stock image of a dog. Further refinements allow recognition of the dog’s breed and individual characteristics. By the end of the decade, old-fashioned social media updates give way to cloud-stored virtual records of thoughts and images. By 2035, if you are under 30, Facebook is something your parents used to use.
Early attempts to admit cyborg evidence recorded by social media are barred. Despite Section 901(b)(11) of the Mass. Guide to Evidence and similar rules providing that expert testimony is not necessary to authenticate digital communications, Judges initially demand onerous expert testimony and doubt the accuracy of the technology. As neural interfacing becomes more widely accepted, however, accuracy and security concerns fade.
Cyborg evidence is first considered in non-jury civil contexts. In 2039, it serves as part basis for a spoliation ruling in a New Jersey state court, in which a product liability defendant who was wearing a neural interface when he deleted a folder is shown to have had knowledge that relevant documents were contained in that folder. Cyborg evidence is later admitted in other circumstances, and the arguments against its admission shift to hearsay. Many courts admit cyborg evidence as a present sense impression. Massachusetts courts, which do not recognize the present sense impression exception, cite the excited utterance and past recollection recorded exceptions.
In 2050, in a matter of first impression, the Massachusetts Supreme Judicial Court is asked to decide whether the final thoughts of a vehicular homicide victim, captured by a social media neural interface, are admissible as a statement made under belief of impending death. The 130-day period has been waived twice. The defendant, citing Confrontation Clause concerns, plans to appeal to the Supreme Court if the admission of the evidence is upheld.
The Regulatory Landscape, by Peter Lefkowitz
After several high profile cyber-attacks, privacy became the product and service differentiator for consumer technology. Browsers were released that allowed consumers to easily surf the web without extensive tracking by individual sites and ad networks. Computers, phones, tablets, and hybrid computer-phone-tablets arrived on the doorstep with encryption enabled and no passwords stored by default, and credit cards came with pictures, PINs and various means of confirming identity at check-out. The “Don’t Let Them Find You” advertising campaign ran six times during the Super Bowl, featuring a husband and wife hiding out in their garage, cell phone SIM cards removed, until their new Privacy Phones arrived and they could re-emerge into the sunlight.
The phenomenon was not lost on social media providers. Having lost valuable traffic, revenue and market cap because consumers feared “being the product,” providers made a point of advertising the information they did not collect and the data they did not share. Web pages for pharmaceutical products carried banners advertising that they would not track visitors. Registration pages provided clearly marked options for collecting and sharing information. And surveys found that consumers signed up for social media services based overwhelmingly on how much they trusted the service provider.
Having become cool, privacy was able to take a short vacation. Consumers decided once again that they wanted advertising and coupons for their favorite food and their needed drugs and felt empowered to store healthcare and banking data on their cell phones, with greater assurance that leaving a phone in a taxi wouldn’t upend their personal lives. Consumer technology companies and service providers made sharing information progressively easier (by providing common formats for consumer decision-making) and more lucrative (by openly sharing the benefits of data collection with consumers). Health care and other scientific fields benefitted from the ability to use “big data” for clinical research. And regulators shifted their focus back to hackers, phishers, spammers, scammers and other ignoble creatures.
Perhaps most critically, privacy officers became extremely cool. Their focus shifted from defending against increasingly aggressive regulation and avoiding the next breach to designing privacy features into products. CPO’s found new allegiance with their development and sales teams, and their budgets grew as they became integral to the design and release of new products across technology, social media and consumer industries. Admittedly, the latter trends only began to take hold late in the review period and will be covered in greater depth in the follow-on article of 2030.
Landmarks in Copyright Law, by Zick Rubin
January 14, 2014: After Twitter introduces a simple online copyright application process with PayPal payment options, the Copyright Office receives 14 billion applications to register tweets and begins to collapse under the load. The Office issues a new regulation providing that works containing fewer than 141 characters will no longer be eligible for copyright registration.
February 14, 2014: Under pressure from Twitter and its users, the Copyright Office rescinds its “No Tweet” regulation. Twitter supporters point to nursery rhymes, haikus, and aphorisms containing fewer than 141 characters, including Poor Richard’s pithy “He that lies down with Dogs, shall rise up with fleas.”
June 27, 2016. The Affordable Idea Sharing Act of 2016 is signed into law by President Clinton. The Act requires all citizens between ages 12 and 80 to make at least one “bona fide” post each week that is dedicated to the public domain, or they will be presumed legally incompetent. “We all have great ideas,” the President writes in her signing message, “and we have a duty to share them with our friends.”
May 2, 2018. In a case of first impression, the First Circuit holds that John Peebles infringed Maurice Schwartz’s copyright when Peebles copied Schwartz’s Match.com on-line profile, including his “favorite sports team,” “favorite recording artist,” “astrological sign,” and “favorite color.” The court concludes that “Schwartz’s favorites – Red Sox, Springsteen, Capricorn, and blue – constituted a protectable compilation with the required minimal level of creativity, though just barely.”
December 9, 2019. The Republic of Montenegro declares that it owns all content posted on the .me top-level domain, which has been assigned to Montenegro by ICANN (the Internet Corporation for Assigned Names and Numbers), including ask.me, tell.me, and click.me.
January 3, 2020. The South Sea island nation of Tuvalu declares ownership of all content posted throughout the world on the .tv top-level domain, , including abc.tv, pbs.tv, and mtv.tv.
January 12, 2020. In retaliation for Montenegro’s and Tuvalu’s “Internet imperialism,” Craigslist founder and customer service representative Craig Newmark announces that Craigslist Podgorica and Craigslist Funafuti have been taken off-line.
June 2, 2020. In a long-awaited decision, the Supreme Court upholds the constitutionality of the Affordable Idea Sharing Act of 2016. The Act had been challenged by an order of Trappist monks bound by a vow of silence. “They have a First Amendment right not to speak,” Justice Michelle Obama writes for the five-justice majority, “but that doesn’t mean they have a right not to text.”
Email: So 2000 and Late, by Marty Mazzone
It’s 2020. If 2012 was the dawn of social media as evidence in litigation and investigations, it’s high noon now. And you are Marshal Kane, facing down the discovery enemy: highly connected, complex “awareness” systems incorporating movement, touch, and location feedback, non-computer instant messaging, video and speech, and more – all, by the way, located in the one cloud above Hadleyville (the dusty Western town in the movie). After the geniuses at MIT developed and commercialized Blossom, the now-ubiquitous multi-person awareness system (http://www.media.mit.edu/research/groups/fluid-interfaces) in 2014, the very conceptual framework of communication changed. The legal system still depends on the information in the new awareness systems, but how to get it, preserve it, extract it, read it? That is the challenge.
We have been here before. The discovery and authentication concerns of 2012 seem almost quaint now but at the time, with the introduction of social media as a primary source of business as well as personal communications, lawyers actually longed for the goold old days of email. After all, technology races ahead, but the job of a litigator does not change much. Litigators tell stories to fact-finders, decision-makers and opponents. They extract support for those stories, in large part, from the records people leave behind. Where are people, especially younger people, leaving their records today? No longer in paper correspondence trails, where the story is straightforward – a simple discovery challenge. Further, although even today in 2020 litigators do not suffer from a dearth of stupid emails, still we find many fewer stories in email. When we did find them there, we had the tools (even since before 2012) for extracting stories from email: an arsenal of email review, clustering, threading, and analytical software plus an entire professional discipline and infrastructure called eDiscovery.
At that time, though, the social media revolution became a very real legal challenge. Facebook (bought out by Google in 2014 but a very popular beginner social media site back in the day), MySpace ( anyone remember MySpace?) and something called Twitter (where anyone could express important or, more usually, vapid thoughts), were used by hundreds of millions of people daily. In Feburary 2012 Facebook reported 845 million active users., and Twitter at the time had over 200 million active users. Not only were people telling and leaving their stories in these virtual places, they were telling and leaving a LOT of them. How to get at these stories and tell them in meaningful ways became the focus of the electronic discovery world, while trial lawyers had to figure out how to connect the stories, often anonymized, to the parties in a dispute – how to authenticate them, in other words.
A prescient thinker at the time, John Palfrey, a Harvard Law School professor, wrote a book called Interoperability: The Promise and Perils of Highly Interconnected Systems. He foresaw many new challenges in law, such as privacy and data security – he called them “new versions of old problems” in an interview – as the inevitable result of our love affair with connectedness. (Read about it here at http://cyber.law.harvard.edu/research/interoperability). (Privacy of our written communications and interactions on the Internet seems such a dated notion today, but at the time many people were frightened at the amount of personal information publically available.) Similarly, for the eDiscovery profession, the connectedness and complexity of social media posed overwhelming obstacles to collecting and using evidence. For example, since the information was actually being stored “in the cloud” by a third party (not a client or opponent, on a closed network), how did litigators obtain the information? How could a litigator ensure preservation and avoid spoliation charges when users could delete information even years after they “posted” it (an old-fashioned Facebook term for affirmatively publishing information)? And, since posts were followed by responses over a period of days, interspersed with unrelated topics, how did a litigator reconstruct the actual conversation that occurred? The threading/reconstruction tools that existed for email had not, as yet, been invented for social media. Once reconstructed, could the evidence be used? What circumstantial evidence was enough to connect a person to his social media in a world where imposters flourished?
Now, of course, we have technology that effectively preserves and reconstructs meaningful conversations found in older social media technologies. But no one yet has come up with a practical, cost-effective way to collect facts from communications arising not via the written word (or the spoken one) but through motile (movement), visual, or haptic (touch) feedback. We used to have digital interfaces that captured information as part of the hardware and software, or at least we could track and connect users to their interfaces. Now our hands, or the tabletop, or the wall, are the instantly-available and untraceable interfaces. It’s 2020, and law is in a show-down with technology. Who will win?
The Legal Landscape, by Tom Hemnes
A new field of legal specialization will develop at the intersection of privacy, data protection and movement, and brand protection law. Privacy regulation will coalesce around principles of opt-out for non-sensitive data and opt-in for sensitive data. Efforts to harmonize the privacy laws of the United States and the European Union will fail, but use of the “Safe Harbor” type principles will expand to facilitate international data flow. Behavioral marketing will be increasingly regulated; the industry will organize itself to lobby against further regulation. Copyright-like rights in compilations of data will collide with the personal data protection laws. Law enforcement and security authorities will monitor social media aggressively, leading to thin regulation of their activities in Western countries but no regulation in authoritarian regimes. Tort remedies for invasion of privacy and of the right of publicity will expand. There will be proposals to create property rights in personal data, against which the industry will successfully lobby. By the end of the next ten years social media will have become less revolutionary from both personal and political standpoints, through regulation and ubiquity.
Thomas Hemnes is a Partner at GTC Law Group LLP & Affiliates. He is a member of the bar in Massachusetts, England and Wales.
David A. Kluft is a Partner in the litigation department of Foley Hoag LLP. He is a member of the Boston Bar Journal Board of Editors.
Peter M. Lefkowitz is Vice President, Legal and Chief Privacy Officer at Oracle Corporation. He is a member of the Boston Bar Journal Board of Editors
Martha Mazzone is a Vice President and Associate General Counsel at Fidelity Investments. She is a member of the Boston Bar Journal Board of Editors.
Zick Rubin practices publishing, copyright, trademark, and higher education law in Newton (www.zickrubin.com). In December, 2020, he received the National Medal of Soothsaying.