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TripAdvisor Under Fire for Blocking Reviews of Rape and Injuries

The popular trip planning website, TripAdvisor, is under fire for alleging deleting user reviews of criminal activity in hotels. The Milwaukee Journal Sentinel published a story revealing that TripAdvisor had deleted reports of rapes, injuries, and even deaths among tourists in Mexico.  U.S. Sen. Tammy Baldwin (D-Wis.), has urged the Federal Trade Commission (FTC) to investigate TripAdvisor to protect consumers from potential fraud.

Dozens of people have alleged that TripAdvisor silenced them by deleting their posted stories and then alerting the user via email. According to the emails, TripAdvisor removes many negative reviews because the website views the reviews as “hearsay,” “off-topic” or in violation “family friendly guidelines.”

It is unknown how many reviews TripAdvisor has deleted. TripAdvisor relies on users with special privileges to manage its website. However, the company refuses to disclose how its moderators are selected. TripAdvisor has responded quickly by rolling out a new warning system that marks resorts where safety concerns have been reported in the media. The company has promised to make other changes so that travelers can share their traumatic stories.

tripadvisorIs It a Crime to Stop Someone From Reporting a Crime?

Generally, non-emergency personal (police, firefighters, paramedics, etc.) have no duty to report a crime. If I see someone mugging another person outside my window and don’t report it to be police, generally I wouldn’t be liable for not saying anything to the police.

Of course, different states often have exceptions to that general rule.  For example, California imposes a duty to report if a school official, medical professional, or therapist knows about a child being molested and fails to disclose it to law enforcement. Other states may have similar laws expanding aiding and abetting a crime to include failure to report certain crimes.

TripAdvisor presents a slight different question. Instead of failing to report a crime, TripAdvisor is taking down reports of crimes. Is that illegal?

Although potentially immoral, TripAdvisor hasn’t committed a crime. Generally, the law contemplates reporting a crime to law enforcement, not to the public at large.  It would be illegal to intercept communications to a police officer in order to ensure that the police don’t find out about a crime. However, removing a review on a website is not the same as preventing the police from discovering a crime. If that were illegal, newspapers and media outlets would be committing a crime by choosing to report on some crimes and not others.

Fraud and Libel from Both Directions

TripAdvisor’s reviews open it to allegations of fraud from consumers and libel from the businesses being reviewed. If TripAdvisor takes down negative reviews that are real, TripAdvisor may be misleading travelers into believing that a hotel or business is safe when in fact it is not. On the other hand, if the reviews are false and the business is harmed by the negative reviews, TripAdvisor may be guilty of libel. This knot is complicated by the fact that the company is not the one writing the reviews, but the users online.

The good news for TripAdvisor is that most of the businesses suing for libel probably wouldn’t make it very far. States like California have anti-SLAPP laws; laws that prohibit strategic lawsuit against public participation. Lawsuits that are designed to intimidate defendants from publicly criticizing others can be stopped by the right SLAPP law. Moreover, the truth is always a defense against libel. As long as the allegations of rape or criminal activity in the review is true, businesses generally won’t have a real claim against review sites like TripAdvisor or the reviewers on the website.

A review website removing content is a relatively new claim. Yelp.com has been sued for refusing to remove negative reviews, but the refusal to post negative reviews might be groundbreaking. However, it is doubtful that the reviewers would be able to successfully bring a such a claim. In order to file a lawsuit, the petitioner needs to show that he or she would be harmed by the defendant’s actions. Review sites like TripAdvisor or Yelp might harm people who read only positive reviews, but the people who post the missing reviews wouldn’t be harmed.

Even if the readers were to be harmed, it’s not clear that the review website would be liable. Suppose I go to TripAdvisor, read about a great hotel, and then get robbed when I at the hotel I found on TripAdvisor.  I later find out that TripAdvisor removed four reviews about mugging at the hotel because the website thought the reviews were only “hearsay.” Obviously, the thief would be the one response for actually stealing my stuff. Absent a legal duty to warn me about crime in the area, TripAdvisor would not be liable for its failure to warn.

However, TripAdvisor could be liable for misleading me about the safety of the area. TripAdvisor holds itself out to the public as a business that screens the services and safety of other businesses. If TripAdvisor modifies their reviews so that the reviews are less reliable, I could say they are misleading me about how their services work.

Attorney General Sessions Wants to Look at Your Phone

A backdoor from tech companies like Google and Apple allowing access to encrypted information stored on suspects devices has been something on the federal law enforcement wish list for some time. Similarly, there has been a push and pull between law and enforcement and tech companies over how much access these tech companies allow the government when it comes to the stored information of customers.

For instance, just a few years ago an email service known as Lavabit closed its entire business after refusing to comply with a court order allowing the U.S. government broad access to user emails. The exact breadth of the order was and is confidential. but it was enough that the company chose to close its doors rather than comply. The government has also turned to outside sources such as grey hat hackers to access password protected information on an iPhone. This led to an odd reversal of the usual dynamic where Apple was asking the FBI to reveal the security vulnerability in their own technology.

There is obviously a push and pull between the government’s interests in security and the public’s expectation to privacy in communications sent online and information stored through online services and on private phones, computers, or other devices. However, AG Jeff Sessions doesn’t think there’s much debate. Sessions has recently condemned tech companies for blocking access to encrypted data on mobile phones. He complains that tech companies have blocked FBI access to around 7,500 devices in the last year. He also says this is an act supporting terrorism.

Privacy vs. Security Under the Constitution

Regardless of how you feel about the balancing act between security and privacy, Sessions’ position is an immense oversimplification of an incredibly complex legal situation. Privacy rights come from many sources. These include state laws, statutes applying to specific situations and a more nebulous privacy right to privacy which the Supreme Court has ruled can be imputed from the combination First, Third, Fourth, Fifth, and Ninth Amendments–this is referred to in law as the penumbral rights of privacy and includes quite a few rights. Perhaps most relevant here is the Fourth Amendment right against unreasonable search and seizure.

The strength of this right generally hinges on a person’s reasonable expectation of privacy. It’s agreed that this is quite strong when you’re in your home, but the strength of your expectation of privacy varies drastically depending on the situation. How the right applies to data is a complicated situation–it’s generally agreed to apply to a locked phone as you’ve taken steps to ensure the privacy of the information on that phone–the same could generally be extended to a password protected computer or other device.

attorney general sessionsThis kind of shoots in the foot AG Session’s assertions that not allowing the government to bypass these protections is a legally reprehensible action akin to supporting terrorism. At the very least, a broad assertion that every situation where tech companies decline to provide access to a phone is a bit rich when that information is often constitutionally protected from search without a warrant.

But when it comes to seeking information from a third-party such as a tech company the protections on this information become even more complex. The Fourth Amendment generally considers you to have relinquished your expectation of privacy when you knowingly reveal that information to a third party. The key words here being “knowingly reveal.”

It’s undisputed that you entrust the security of an enormous amount of information to third parties–storing information on the cloud, using an email service provided by another, sending a message through a third-party’s service, basically any situation which involves storing information on a third-party server–an incredibly common situation in today’s digital age. Where this happens, no warrant is required to access your information–instead the government only requires a subpoena and prior notice.

As you can imagine, this has the potential to undermine your rights in an enormous amount of information. It is common for the government to seek information from the third parties you have “disclosed” the information to–often email providers, telecommunications companies and ISPs. However, given how little many people know about the exact details of how their data is handled or disclosed it’s often a bit of a stretch to describe using an email server of something similar as “knowingly disclosing.” What’s more, this exact issue is something the Congress has already addressed to some extent through legislature such as the Electronic Communications Privacy Act, the Federal Wiretap Act and especially the Stored Communication’s Act (SCA).

To discuss these in full is the work of a textbook. However, the SCA is likely the most relevant to AG Sessions’ assertions and the protections on at least some of the data you “share” by using common online tools such as email or messaging services. A locked phone is almost certainly off the table in most situations–breaking a customer’s encryption is not only undermining a business’s entire brand but doing so at the behest of the government without a warrant is arguably unconstitutional. The SCA makes it similarly illegal for companies storing your online communications to disclose your data to the government in many situations, the data you store on your phone may often not even be disclosed from a source beyond the phone itself. Failure to comply with the SCA can lead to serious legal repercussions for the tech company violating the SCA’s rules.

What is the Stored Communications Act?

So obviously if a company doesn’t keep your communications private and it happens often enough the company will lose any credibility with the public and lose business. It makes sense that tech companies are careful with choosing whether to share user information and when to not just roll over.  The SCA adds another consideration for these companies–providing a statutory source of protection like the protections of the Fourth Amendment for internet communications sought by the government and–in some cases–non-government entities. The SCA commonly applies to information such as emails and, after a 2010 court case–social media messages (but not open messages on a wall or comments unless the user is restrictive of access to these communications).

The SCA specifically protects the contents of digital communications stored on the internet as well as some appealingly non-content information which can be used to identify the contents of a communication such as subject headers. “Contents” is quite a broad legal concept and includes any information regarding the substance, import, or meaning of a communication. In general, however, non-content information can be disclosed without consent. Protected data cannot be shared with the government unless the person who made the communication consents to it.

If the information is less than 6 months (or more accurately 180 days) old the SCA applies the standards of a warrant before the government can access the information. After these 6 months are over, the standard of protection drops substantially and requires only a showing that the information could be relevant to an ongoing criminal proceeding. Routine business information such as location data–obviously not a communication–only requires a court order based on articulable facts for the government to demand it from a tech company.

The SCA makes it a crime to access without authorization or exceed authorization granted in accessing electronically stored communications. Where an ISP or company that stores your communications shares those communications in violation of the SCA they’re going to face serious repercussions. It can also create a civil action against both the company and the government for the person who made the improperly shared communication. It does not allow access to data stored outside the U.S. unless the user associated with the communications is a U.S. citizen.

Just over a month ago, Sessions’ own department strengthened the SCA. As written the SCA provides the ability for the government to impose gag orders on ISPs and tech companies–preventing them from even telling their user that they have disclosed their information. This is available with a government showing that such a notification would put a person or investigation at risk. The departments new approach limits the duration of these gag orders to one year and only if necessary. It also requires them to provide a more thorough explanation of why the gag order is necessary. The change is considered a response to a case related to the SCA brought by Microsoft last year. However, it certainly is odd to have the head of a department condemn protecting online privacy after his own department strengthened it barely a month ago.

Your Privacy is More Complicated Than AG Sessions Believes

Admittedly the SCA is not a perfect law, it doesn’t age with technology as well as it could and often relies on court rulings to update how it treats more modern technology–it isn’t even really settled how the timing of SCA protections apply if you don’t open an email.  It doesn’t cover nearly as much as it could, and potentially as much as it should. Congress has not updated the law since it was originally passed over 30 years ago. However, it is an example of how the law values tech companies protecting your private data. To condemn tech companies for following the law is an unfortunate position for the government’s top lawyer.

The SCA and the Fourth Amendment are far from the only things limiting companies from disclosing user information or allowing access to an encrypted phone. Beyond the condemnation of the public if a company doesn’t keep your data safe and private, a company must follow its own privacy policies. Most privacy policies include carve outs for complying with court orders and it is far from uncommon to include provisions which state that a company will fully cooperate with any or some types of government investigation. However, this is far from a blanket truth. Where these carve outs don’t exist the release of information protected under a privacy policy would lead a company to face serious issues from the FTC.

While security and the investigations of the FBI are incredibly important, it’s far from unreasonable to expect the information you store online to have some privacy protections. In today’s world the sheer amount of information stored in this manner is mind-boggling. It is outright dangerous to the public to demand tech companies to relax their security protocols and Sessions demanding blanket access to the government is very nearly an irresponsible suggestion. Tech companies should be lauded, not condemned, for rigorously protecting the privacy rights of their customers.

Woman Fired From Job For Giving Trump the Middle Finger

Juli Briskman was riding her bicycle on Lowes Island Boulevard mid-afternoon on Oct. 28 when she found herself in the same lane as the motorcade of President Trump, which was leaving the Trump National Golf Course in Sterling, Va. Ms. Briskman made a spontaneous gesture – she pointed her middle finger at the motorcade. News cameras captured the scene and the picture spread across the internet like wildfire.

Briskman had been working for Akima, a federal contractor, as a marketing and communications specialist, for six months. Although few could tell it was her in the picture, Briskman alerted Human Resources to the internet scandal. Her supervisors summoned her to a meeting, where they terminated her. Akima has a company policy against posting lewd and obscene things on social media pages; such postings could harm the company’s reputation as a government contractor.

Briskman’s social media pages do not mention her employer and the incident happened when she on her personal time. Briskman claims another employee had written a profane on Facebook, but was merely reprimanded and forced to delete the post, but allowed to keep his job.

trumpBriskman Doesn’t Have a Case for Sex Discrimination

Virginia, like most states, has “at will” employment laws. At will employment means private-sector employers can fire people for any reason, except for illegal reasons, such as illegal discrimination or breach of contract. If an employer doesn’t approve of a social media posting, the employer has the power to terminate that employee, regardless of how “fair” it is.Briskman could allege that there was illegal sex discrimination here, since her male co-worker was reprimanded for his crude internet posting while Briskman was outright fired. If the employer was biased against women, these incidents would be one manifestation of that bias.

Although Briskman was punished more harshly than her male co-worker, the employer may be within their right to do so as long as the employer has a reasonable explanation. The employer may believe that a personal insult directed at unknown persons is less damaging than insults thrown at public figures, especially since the public figure is famously thin-skinned. The employer might believe giving the middle finger to the President would harm their chances of obtaining a government contract whereas insulting random internet nobodies would not have the same adverse effect. Or the employer might be pro-Trump. The employer doesn’t need a good reason to terminate a worker, only a reasonable alternative to sex discrimination.

Can Employees Use Social Media Without Employers Watching?

So what can employees do if they don’t want their employers to monitor their Facebook or Twitter use? Currently, the law offers very little recourse for employees or potential employees. Remember, default employment law in the U.S. is “at-will.” If an employer doesn’t like Facebook pictures of their employees smoking marijuana, they can terminate an employee for that.

As stated earlier though, there is a line. Employers cannot violate employment laws or their own contracts with employees. Some people use marijuana to alleviate a disability. If a disabled employee asks an employer for a reasonable accommodation, the Americans with Disabilities Act requires the employer to honor it (it’s questionable whether using marijuana would be a reasonable accommodation under the ADA since marijuana is still illegal under federal law).

The second exception is that employers cannot violate their own contracts. Courts have recognized some employer policies as binding contracts between the employer and the employee. If an employer enacts a process of review for social media usage, the employer should follow that process. For example, Akima requires its employees not to post any obscene materials on their social media accounts. However, if Akima social media policy had required that all first time violations result in a warning, then Briskman might have a breach of contract claim. This of course depends on the policy, and how much each party relies on the policy.

Of course, the best revenge is success. After Akima fired Briskman, she received over $30,000 in donations from GoFundMe and 453,678 job offers. One of the biggest benefits of a free-market system is that if an employer is a real dummy about social media use, other employers will be more than happy to scoop up talented workers.

Failure to Pay Rent on Your Furniture Could Mean Jail Time

In Texas and Florida, you might go to jail for failing to pay for your furniture. Rental companies in the state had successfully lobbied for a little-known law that allows rental companies to press criminal charges up to felony theft for failure to pay for a rental property. A dispute over a $3000 bed set can turn into six months of jail time for the debtor. The Texas Tribune and NerdWallet found rent-to-own companies have pressed charges against thousands of customers in Texas and in other states.

Customers faced with these charges are allegedly that they were misled. Their understanding was that the rental agreements were installment payments to purchase the furniture. An agreement to pay $8,000 for a $5,000 piece of furniture, only to return the furniture to the company, is absurd. The companies claim they only want their property back under the terms of the lease.

rental companies21st Century Debtor Prisons?

One of the biggest concerns with public policies like these is whether the agreement is an adhesion contract. Adhesion contracts are standardized agreements that are on a “take it or leave it” basis. Adhesion contracts are often scrutinized because their standardized nature causes people to read them less carefully than other agreements. Rental contracts are often adhesion agreements when it comes to criminal charges. Nobody expects to get arrested because they signed an agreement to rent a chair.  If customers don’t read the agreement and fully understand what it is they are agreeing to, they may find themselves blindsided when the police show up.

The use of criminal charges to collect rental property is unnecessary because all states have civil procedures for debt collection. Civil laws provide a wide array of tools for creditors to get their money back. Lienswage garnishment, and civil suits are available to those who are owed money. Pressing criminal charges is a means of avoiding the usual due process of debt collection.

However, anyone who’s had to collect debt knows that it can be a long and expensive process. To obtain legal remedies like wage garnishment, the creditor must initiate a lawsuit and then convince a judge of one’s position. Calling the police would seem like a cheap and quick solution in comparison.

What is the Future of These Types of Contracts?

On one hand, it’s extreme and abusive to pursue criminal charges just because someone signed a piece of paper. On the other hand, the rental companies do have a right to recover their property and threats of criminal action are probably more effective than the use of liens. One possible solution would be to require rental companies to explicitly inform the customer that they may be subject to criminal charges in the event they fail to pay or return the rental property.

Customers would have notice that these clauses are in their contracts and could decide whether they wanted to do business with a company that would press criminal charges for missing a thousand dollars of property.  If rental companies are forced to disclose potential criminal liability in their agreements, it might increase competition between companies that use the police and those that do not. This would be a win for both customers and the free market.

Bank Regulations are Being Rolled Back, How Will It Impact You?

Have you ever been abused by a major bank? It’s happened to many people. Sometimes, Wells Fargo opens an account you never authorized and charges you fees for it. Other times, Bank of America promises an underwater homeowner it will negotiate with them, only to foreclose on the homeowner behind his back. After the collapse of the housing market in 2007, the new Obama administration introduced a series of regulations to keep banks from engaging in such underhanded practices again. Those regulations are now being reversed.

What Happened?

Last Tuesday night, Congress and Vice President Mike Pence voted to overturn a rule limiting arbitration clauses in contracts between banks and consumers. The 45th President is expected to sign it. Congress has the power to review and overturn any rules made by the Consumer Financial Protection Bureau within 60 days of the Bureau’s creation of a new rule. The Treasury Department recommended overturning the CFPB rule because it would generate 3,000 in class action suits over the next five years, requiring those banks to spend up to $500 million in legal defense. The Treasury Department warned these suits would result in windfalls for plaintiff’s attorneys, but “zero relief” for the consumers who bring these suits.

regulationsThe CFPB’s rule banned the use of arbitration in contracts between banks and customers. Arbitration is favored by most industries because it is cheaper and less time-consuming than going to the court. However, arbitrators have often been accused of being biased, especially when the contract allows the business to decide who the arbitrator will be. Plaintiffs can hardly expect a fair hearing if the arbitrator was chosen by the business they were suing. Parties would not trust a judge handpicked by the very people they were suing, and yet it is somehow okay for this to occur in arbitration. Even worse, arbitration is often binding in these kinds of contracts – in other words, it is next to impossible to appeal a decision made by an arbitrator.

This is not to say that all arbitrations are like this. If two business partners agree to resolve their disputes through arbitration and they each agree on an arbitrator, arbitration would probably be fair and just in that case. However, when arbitration occurs because of an adhesion contract, such as those commonly found between banks and consumers, arbitration looks less like a cheaper option to trial and more like a kangaroo court.

Will This Even Work?

The CFPB’s proposed rule might have been imperfect, but at least it attempted to deter big banks from abusive practices. Although class actions might not be the best vehicle, at least they are a vehicle which consumers had. The CFPB’s report shows that consumers obtain 1,000 times more money from class action suits by plaintiff’s attorneys than through arbitration. Preventing consumer attorneys from representing classes of attorneys might protect banks from such lawsuits, but the individual consumers would be harmed even more if forced into arbitration.

This was evident in the mortgage crisis and recession ten years ago, when the major banks were caught forging documents and engaging in other shady practices to recover from losses in the housing industry. Repealing the CFPB’s rule looks even worse given that the Wells Fargo Account Scandal occurred only last yearand the Equifax scandal came out this summer. When it is obvious that the large banks and private financial institutions have not learned from the mistakes that triggered the worst recession since the Great Depression, repealing financial regulations now is not only foolhardy, but outright dangerous.