California has everything: big cities, small towns, tall mountains, dry deserts, farms, factories, miners, fishermen, surfers, hipsters, yuppies, startups, and people of all walks of life. You can look at the state of California and see everything that makes America great. Unsurprisingly, California also has some of the most comprehensive privacy laws in the country. The Golden State is a national leader when it comes to privacy legislation. California was the first state to pass a breach notification law, and other states soon followed suit. State privacy laws from coast to coast are often modeled, in some way or another, after California legislative precedents. So goes California, so goes the nation.
Currently, a handful of privacy bills have made their way through committees and at least one house of the state legislature. These bills reflect an evolving attitude towards the protection of more data from new technological services We can expect that within the next year each bill will come up for a vote, possibly expanding privacy rights for all Californians. Because of California’s leadership on the privacy issue, businesses and consumers across the country may expect to see their own states adopt several of California’s protections.
Earlier this year, the Ninth Circuit, sitting en banc, reversed a decision by a three-member panel of the same court and found that a mandatory injunction against Google was unjustified. Garcia v. Google, Inc., No. 12-57302 (May 18, 2015). The appellate court explained that, “a weak copyright claim cannot justify censorship in the guise of authorship.”
In Garcia, actress Cindy Lee Garcia was paid $500 to make a guest appearance in a film titled “Desert Warrior.” Garcia’s five-second (two-sentence) performance was “transformed . . . into part of a blasphemous video proclamation against the Prophet Mohammed.” The writer-director of the film dubbed over Garcia’s lines and replaced them with a voice asking, “Is your Mohammed a child molester?” The trailer for the film, now titled “Innocence of Muslims,” was uploaded to YouTube. The video received millions of hits and, not surprisingly, caused Garcia to receive several death threats. In an effort to protect herself, Garcia argued that she has a copyright interest in her performance, a right that was infringed by the posting of the video without her consent. Garcia filed for an injunction requiring Google (the owner of YouTube) to take down the video. The district court denied her request and a divided panel of the Ninth Circuit reversed, despite characterizing her copyright claim as “fairly debatable.” The three-judge panel did not substantively address the First Amendment implications of its decision.
Let’s face it: social networking has us “all atwitter.” At any given moment, whether we’re on the subway or in our cubicle, we can like, post, poke, share, tweet, DM, pin, snap, yik yak, link, yo, and instagram with just about anyone with access to the internet. A recent global survey shows that the average person has five social media accounts and spends approximately one hour and forty minutes browsing these networks every day, accounting for twenty-eight percent of the total time spent on the internet. That’s a lot of tweeting. Accordingly, many employers are curious as to what we are posting and when we are posting. Other employers want to take advantage of social media marketing opportunities by requiring their employees to use personal social media accounts as billboards for the business. In response, some states have passed legislation to protect individual privacy and curb an employer’s access to employee and job applicant social media information.
In 2012, Maryland became the first state to prohibit employers from requiring workers and prospective employees to disclose their user names and passwords to Facebook, Twitter, and other personal social media accounts. Maryland’s law started a trend.
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