November 30, 2014

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Please Don’t Tag Me! Instagram for Doctors: #SpecificSymptoms, #RareDisease, #PatientConfidentiality, #PatientPrivacyRightsViolated

POSTED BY Cherie M. Ching

 

New informational sharing apps allow medical professionals to post photos and share comments regarding their patient’s medical conditions, similar to the components of the Instagram app.  Although these apps may provide a higher degree of efficient and effective services to medical patients, issues of breach of privacy rights and fiduciary duties arise.

 

Doctor’s appointment.  Not your favorite part of your day, particularly because it is usually scheduled due to health failure or after you have discovered something abnormal, and it always consumes an unnecessary part of your valuable day.  However, in reality, your doctor’s appointment should be considered THE valuable part of your day for the fact that you entrust your doctor with personal information and truthful information.  Private information, such as medical history and medical conditions, is probably unknown to most of the people in your life. You place a certain level of trust and confidence in your doctor, creating an important and non-waiveable fiduciary duty to provide you with the utmost respect and act in your best interest.

 

Medical records play two essential roles in the practice of medicine: First, they assist with patient health and wellness by better recording keeping and sharing, thereby provide quality treatment. Second, they help improve scientific research and development, and contribute to the advancement of medical sciences. These records consist of a broad range of information about the patient’s demographic, medical history, symptoms, and diagnosis.  Historically, doctors recorded and stored patient information in physical forms of x-rays, photos, diagnosis, and prescriptions. This time consuming process of transferring and delivering hard copies of medical information is being replaced by electronic sharing of digital graphs, image, and patient records.  This process allows collaboration in real-time and for a quicker response to concerns and updates regarding a patient’s situation. Patient’s medical records are essential in providing timely and accurate treatment.

 

Thousands of healthcare providers use apps as a database to upload, share, and review images.  These apps do not collect the medical information of the individual patient, but rather provide the means for a broad educational exchange between healthcare providers and medical students.  Patient consent is not a prerequisite for posting the photo, however, it is encouraged that pre-existing patient consent forms are provided.  As discussed in a recent BBC news article, Figure 1 has become a popular database for healthcare professionals to share photos by obscuring the identifying marks on the patient’s body.  Identifying the patient is not the intent of the program, but posting photos can inadvertently cause identification of a patient when a rare disorder or disease identified and a specific number of cases in the area are known.  In addition, if a specific doctor posts a photo, the identity of the patient may be easily determined.  The apps capacities are similar to the free social networking platform, Instagram, which allows users to take pictures and share them in real-time with other followers, tag followers and subjects, identify location of the photo, “like” the photo, and make comments.  Figure 1, like Instagram, allows users to chose their audience, which could be your private followers or public to anyone in the Figure 1 community.  If a doctor is not careful of appropriately masking the patient’s identity, he/she is at risks privacy violations.

 

Posting photos of a Sunday picnic or a day at the beach on Instagram is far different from posting a photo of a patient’s skin rashes.  Regardless of how the information is obtained, stored, or shared, privacy protection still applies and the Fourth Amendment protects each individual from privacy violations.  The Health Insurance Portability and Accountability Act of 1996 (HIPAA) sets national standards for the security and protection of electronic patient health information.  Through HIPAA the privacy of individually identifiable health information is protected and notification is required if a breach of unsecured health information has occurs.  Even with patient consent, healthcare providers still risk breaching HIPAA standards if the patient does not understand the purpose for which his/her information is used. The Patient Safety and Quality Improvement Act of 2005 (PSQIA) similarly promotes protection of personally identifiable health information by establishing a voluntary reporting system aimed to enhance the data available to assess and resolve patient safety and health care quality issues.

 

With a broader range of searchable information, practitioners are able to expand their research grounds. Although not free from privacy concerns, health record sharing confirms the recipient, the location, and purpose of the shared information. Healthcare providers who use apps such as Figure 1, UpToDate, or DynaMed experience shortened hospital stays, fewer deaths, better quality performance, and rapid feedback for clinical questions. However, doctors reaping the benefits of such invocation should remember not to sacrifice their patient’s privacy.

 

Cherie is a 2L Staff Member of the Journal of High Technology Law at Suffolk Law.  She enjoys dancing, aerobics, and running.  Her fitness goal is to complete a half-marathon in every state.  

November 13, 2014

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Social Media: A Double-Edged Blade

POSTED BY Micah-Shalom Kesselman

On November 14th, Suffolk’s Intellectual Property Concentration will be hosting a conference titled Emerging Issues in Social Media Liability.  Social media has continuously increased in significance and ubiquity for years now.  Whether it is Twitter, Facebook, LinkedIn, Instagram, SnapChat, or any other of the myriad social media platforms that pervade one’s everyday life, chances are that every person reading this is on at least one social media network.  Because of social media’s vanguard place in our current world, however, the risks of using it loom large.

This is not to say that social media’s value is outweighed by its risk.  It is an invaluable tool to start up and established firm alike.  Smart use of social media allows companies to keep tabs on the pulse of their customer base, startups to go viral and gain traction in a way heretofore unseen, and build a relationship between the executives of a company and the public with greater ease than ever before.  At the same time, each advantage is counterbalanced by risks that arise from the very function of social media that provides it with its ability to be a force multiplier.

While social media platforms allow companies to track trends in their consumer market, its prevalence, combined with the sheer number of platforms in the field, lead to serious cyber security risks for the consumer.  De-anonymization through social media platforms is of growing concern.  The precise contours of liability associated with this threat, however, are unclear.

Companies also have the potential to do more harm to themselves than good when it comes to attempting to build a relationship with their customers.  Inept use of social media, whether intentional or not, can have dire consequences on a firm.  The extent of liability that can be imputed on a “social media manager” has been explored only minimal.

The celerity of information’s dissemination through social media also highlights the heightened danger of false or inaccurate information in the new paradigm.  Rumors have never been as quick to spread and, as a result, as potentially harmful to a company’s future as in today’s world.  Even accurate information, when leaked over social media, can quickly destroy a well thought out marketing strategy.

Furthermore, the precise rights granted to a social media platform, even with their sprawling consumer contracts, are not quite clear.  There are serious questions about whether a social media platform, though acting in accordance with the contract all its users sign, can engage in conduct so egregious that it leaves itself open to civil liabilities or worse.  Not only that, but even whether such contracts are at all enforceable is still up for scholarly debate.

While a lot is still unknown in regards to the risks and liabilities associated with social media, everyone can be sure that many of these questions will have to be resolved sooner or later.  It is unlikely that there will ever be a one-size fits all solution that comes forth from any single source of law.  Most likely we will see a slow crystallization of the norms and concerns emerging in this new landscape so pervaded by social media.  It will happen by legislatures at all levels, by evolving case law, and, ultimately, by evolving social norms, for better or worse.

October 23, 2014

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Social Media Spies: The Problem with Government Surveillance Regulations on Twitter

POSTED BY Meghan Bonk

A recent BBC news article reported that Twitter has initiated a lawsuit against the United States Department of Justice and the Federal Bureau of Investigation, alleging a free speech violation in relation to surveillance. Attorneys for Twitter claim that the suit was brought as an incentive for the government to be more “transparent” about surveillance and personal data requests.

Current government regulations prohibit Twitter from revealing specific information regarding the government’s access to users’ data in relation to national security. Twitter argues that by prohibiting the company from discussing users’ concerns about government access to personal data is a violation of the right to free speech defined by the First Amendment in the United States constitution. A BBC News article reported that Ben Lee, Twitter’s attorney, made his views known in a blog post, stating, “It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of the US government officials by providing information about the scope of US government surveillance.”

Twitter submitted a Transparency Report to the United States government in April with hopes of publication. At present time, officials have denied Twitter’s request to share surveillance reports with the public. The nature and number of requests for user information is part of the report. Twitter released a statement alleging that not only does the government fail to speak about the scope of its national security surveillance pertaining to U.S. communication providers, it also prohibits providers from offering their own perspective on these “national security-related requests.”

Twitter’s stance on the government’s regulations and incomplete speech on the scope of its surveillance activities is extremely valid. From a business perspective, Twitter more likely than not fears that if its users are unaware of the scope of government surveillance on their Twitter accounts, they may be dissuaded from using the social media network. This obviously would result in a devastating blow to the company.  Twitter, however, is not the only communication provider who receives government requests to access user data. Google and the American Civil Liberties Union are examples of other firms who actually receive more requests than Twitter does. Microsoft, Facebook and Dropbox are examples of other companies who have been fighting back against the government’s surveillance requests. So, while Twitter does have a just concern, it is not the only company of its breed to face these issues.  In a day and age where our national security can become threatened at any moment, Twitter’s business concerns will always take a backseat to the government’s agenda to keep our country safe. By sharing information about the scope of government surveillance on personal data, Twitter becomes a barrier to the government and a burden to the way it wishes to carry out its investigations.

September 30, 2014

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Yelp: The Power of Online Reviews

POSTED BY Jeremiah Chapin

Since its creation in 2004, Yelp has become a household name. Many consumers have trusted blindly in the online resource that allows anyone with Internet access to post reviews on everything from the local pizza place to a hospital or doctors’ office. Many have praised the online service for bringing a level of transparency to business establishments that have, in turn, become increasingly more concerned about how they are portrayed to potential consumers on the site. It’s true– a Yelp profile can really make or break a business, and with so much riding on Yelp ratings, it’s no wonder several San Francisco-based businesses are taking their grievances to court.

Yelp works by allowing consumers to rate a business on a one-to-five star basis, and then post an optional comment. The key here is that Yelp itself serves only as a vehicle for others to share their experiences and has no influence on the feelings consumers express or the way they express them – or so they claim.  That’s how Yelp works, but like many online businesses, they make their money from selling advertising space on the site. In 2013 Yelp grossed over 233 million dollars from ad space alone.  They are primarily selling ad space to the same local businesses customers are reviewing, a practice that recently landed them in court.

The recent lawsuit suggests that Yelp may be exercising more control over the website than they claim. The complaint – filed by a dentist, an auto-body technician, and a veterinarian in the San Francisco area – claims that Yelp manipulated the order in which positive reviews show up on their site.  And, by placing poor reviews ahead of stronger ones, they were alleged to have thereby introduced a bias that deters would-be customers from businesses that don’t advertise on Yelp. The plaintiffs claim that this was a deliberate form of extortion and that it was in response to the businesses refusal to buy add space on the site. The 9th U.S. Circuit Court of Appeals recently dismissed the case, holding that the alleged manipulation of reviews did not fit with the federal courts definition of extortion.

It is important not to overlook the power that several negative reviews at the top of a Yelp profile can have on an individual’s decision on where to shop, eat, or otherwise spend their money. So much so that if the top several reviews are negative, it really doesn’t matter if the remaining four hundred are positive, the consumer has seen enough and he or she is on to another business.   This being said, although Yelp doesn’t write the reviews, they are in an incredibly powerful position when it comes to the layout of the webpage and, more specifically, the order in which the reviews show up.

With Yelp reviews just a click away on any smartphone or computer, it is clear that people will only become increasingly more dependent on Yelp, thus making businesses increasingly more conscientious of their status on the site. With the 9th Circuit’s ruling, the federal courts have put this issue on the backburner. However, given the ever more pivotal role the website plays in shaping the success and failure of businesses, they will undoubtedly be seeing more Yelp-based suits in the years to come.

 

Bio: Jerry is a staff member of the Journal of High Technology Law. He is currently a 2L at Suffolk University Law School with a concentration on Civil Litigation. He holds a B.A. in Political Science from Roanoke College.

February 10, 2014

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Educating Middle School Students on Internet Privacy

POSTED BY Hillary Cheng

In conjunction with the Rappaport Center, Suffolk Law Professor Jessica Silbey is organizing a program to teach online privacy to Boston-area middle schoolers with the help of law student volunteers.  The program’s curriculum was developed at Fordham Law School, a project funded by a cy pres award in a settlement.  The case that settled, Valentine et al v. NebuAd, Inc., involved claims that targeted online advertising violated the privacy of Internet users.

The fellow who helped develop the program, Jordan Kovnot, stated that he designed the program for middle schoolers because that is the age “when kids are starting to get online and us[ing] social media.”  The program is designed to inform and encourage the students to think about the consequences of having an online presence.

According to Professor Silbey, the program involves 5 modules: (1) introduction to privacy; (2) passwords and behavioral advertisement; (3) dealing with social media; (4) mobile technology, wifi, and facial recognition; and (5) reputation.  The educational program will involve worksheets, dialogue, surveying students’ responses to questions and discussing those answers, and visual displays and presentations.

The program is much-needed and timely considering the growing use of the Internet among young teens.  As reflected in our forthcoming JHTL issue, many young teens do not fully understand the consequences of using social media or technology, and some abuses may result in criminal charges.  Furthermore, online technology such as Google’s targeted advertisements are becoming industry norm, and this increased access of user data by commercial entities raises legitimate concerns about the use of this data.

When asked about the harms of the growing lack of online privacy beyond user discomfort, Professor Silbey suggested several possibilities for concern.  Among others, areas of concern include the overly stringent use of advertising profiles in assessing a user for various decisions such as granting a mortgage, insurance, or other discretionary evaluations, the potential inaccuracy of an online advertising profile, and the expressive harm of reduced exposure to products beyond your advertising profile.

February 10, 2014

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Advertising Rules may be Applied to a Lawyer’s Blog

POSTED BY Caroline Carollo

Earlier this year, the Virginia Supreme Court decided a case that sheds some light on the issue of how advertising rules for lawyers should apply to social media and other forms of electronic communications.  In Hunter v. Virginia State Bar, attorney Horace Hunter authored a non-interactive blog which was accessible from his law firm’s website. The blog contained posts discussing various legal issues and cases, but the majority of the posts discussed cases in which Hunter had obtained favorable results for his clients.  There were no disclaimers on any of his posts or on his firm’s website.

In March 2011, the Virginia State Bar (VSB) investigated Hunter’s blog and found that it constituted advertising under the Virginia Rules of Professional Conduct.  The VSB charged Hunter with violating Rules 7.1 and 7.2 because his blog posts discussing his criminal cases lacked disclaimers and were inherently misleading.  The VSB also charged Hunter with violating Rule 1.6, finding that he revealed potentially embarrassing or detrimental information regarding his former clients without their consent.  Hunter argued that his blog was primarily political speech rather than commercial speech, and should therefore not be subject to advertising regulations.

The Virginia Supreme Court found that Hunter’s blog posts did not violate client confidentiality under Rule 1.6, but found that the blog posts were a form of commercial speech rather than political speech. This distinction is significant because while restrictions on political speech are subject to a higher standard of strict scrutiny, restrictions on commercial speech are subject to a lower standard of intermediate scrutiny.  The Court further found that Hunter’s blog posts were advertisements, because they primarily described cases where he had received a favorable outcome for his client, and that they were potentially misleading.  As a result, the Court held that the VSB could require Hunter to post a disclaimer on all case-related blog posts.

On the other hand, the dissenting justices found that Hunter’s blog posts were political speech rather than commercial speech.  They convincingly argued that speech concerning the criminal justice system has always been considered political speech, and further stressed that Hunter mentioned the outcome of his cases to illustrate his views of the criminal justice system.  Hunter’s blog posts discussed, in detail, the proceedings of public criminal prosecutions, and Hunter referenced the outcomes of his cases in order to show his values as a criminal defense attorney regarding those proceedings.  Consequently, I am not completely convinced that Hunter’s blog posts constitute commercial speech, as his focus on the criminal justice system more closely resembles political speech.

In regards to the client confidentiality charge, I believe the Court was correct in finding that there was no violation.  All the information that Hunter wrote in his blog posts had been openly revealed in public judicial proceedings and concerned cases that had been concluded.  However, one could argue that lawyers should still have a duty of loyalty to keep client information confidential, even if that information is public knowledge.  Creating a public knowledge or public records exception to client confidentiality allows lawyers to discuss embarrassing or damaging information about former clients as long as the confidential information is in the public records.  While blogging can be an important part of an attorney’s marketing plan, it is important for attorneys to abide by their ethical obligations.

January 7, 2014

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Survival of the Fittest: The Doctrine of Hearsay Under The Federal Rules of Evidence v. Social Media and Networking Technology

POSTED BY Veronica C. LaClair

It is a concept as foundational and intuitive as science itself:  survival of the fittest.  In order to survive one must learn to adapt and evolve within a changing world.  Darwin’s principle does not just hold true for the evolution of species, but has a strong correlation to the evolution of society as well.  Today’s society, more so than ever, is highly dependent on technology; specifically social media and social networking technologies.  Therefore, those who cannot—or choose not to—keep up with the advances in technology and communications will surly go extinct.  This principle expands across numerous parts of society including the legal profession.  Within the legal profession the Federal Rules of Evidence are a species all their own, and if their writers do not adapt and evolve them in accordance with societal changes, such as the rapid dependence and use of social media and networking technology, they will never survive.

Almost as intricate and mystifying as Darwin’s theory of evolution is the doctrine of hearsay.  As many students and legal professionals have come to know, and not always love, the doctrine of hearsay plays an important role in the context of the courtroom and comprises a lengthy article within the Federal Rules of Evidence.  The basic principle of the hearsay doctrine holds:  A statement made by a declarant, outside of the courtroom, intending to prove the truth of the matter asserted by the statement is hearsay and is not admissible evidence (Federal Rules of Evidence—Article VIII. Hearsay).  Hearsay is not admissible unless allowed: by exception under the Federal Rules of Evidence, by ruling of the Supreme Court, or by federal statute.[1] Examples of statements that fall within the hearsay exceptions under the Federal Rules of Evidence are: present sense impressions, excited utterances, business records, statements in ancient documents, statements made for medical diagnosis or treatment, etc.[2]

A present sense impression is “a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it”  (Federal Rules of Evidence—Rule 803).  An excited utterance is “a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”[3]The Advisory Committee notes that these two exceptions overlap considerably, with their most significant difference being the time lapse each permits between event and statement.[4]  When the present sense impression and the excited utterance exceptions to the hearsay doctrine were crafted it was under the basic principle that such statements would be asserted either verbally or through ones physical conduct.  However, in today’s society with the advent and prevalence of social media and networking technologies and their readily accessible nature through smart phones and personal media devices individuals can produce statements that fit within these two exceptions through solely electronic means.  A person can for example make a present sense impression by posting a status update to Facebook or tweeting to Twitter, such statuses and tweets can be made instantly, in real-time, and while a person is perceiving an event.  Moreover, a person can make an excited utterance through similar means or by phone call while they are still impacted by the stress or excitement of the event.  Therefore, the question becomes: Are courts going to adapt and evolve to include such social medial and networking technology statements to be incorporated within the doctrine of hearsay under the Federal Rules of Evidence?

The answer to this question is yes.  The general trend of courts and commentaries has been towards adaptation and evolution.  The legal profession has made a survival plan and it includes incorporating social media and networking technology statements into civil and criminal trials.  Courts seem willing to allow statements made though social media and networking technologies to be admissible under the doctrine of hearsay, as long as such statements meet the qualifications of the specific hearsay exception in which they are applying.  In fact present sense impression statements made through Facebook and Twitter have already had their day in court.  Furthermore, in many cases statements made through social media and networking technologies means are treated no differently than traditionally admissible statements, and are allowed into evidence as statements of present sense impressions, business records, etc.

However, in some cases social media and networking statements face a tougher struggle in gaining admissibility at trial under the doctrine of hearsay.  For example, excited utterances are statements made while the declarant is under the stress or excitement of an event.  In such a case an attorney may argue that the time and though it takes to formulate, type out, and post a statement will effectively remove the declarant from a stressed or excited state of mind back into a rational state of being.  However, the counter argument can be made a declarant who updates their status or tweets multiple times a day, every day, could make such a statement while still remaining under the stress or excitement of the situation.

In either case the outcome of admissibility seems dependent on the particular facts of the case, the assertions being made, and the presiding judge, as to whether or not social media and networking statements will be admissible in court.  Moreover, there appears to be a present trend towards the admissibility of such social media and networking statements rather than simply allowing them in isolated, case-by-case occurrences.  This trend of admissibility, where it is applicable, is evidence of change, of an evolution within the legal profession, of an attempt at survival during a turbulent and rapid cycle of technological


[1] See The Federal Rules of Evidence, http://www.law.cornell.edu/rules/fre.
[2] Id.
[3] See Federal Rules of Evidence: Rule 803, http://www.law.cornell.edu/rules/fre/rule_803.

[4] Id.