VIZIO TV Settles Charges Of Tracking Viewers’ Data

In last month’s case of FEDERAL TRADE COMMISSION et al v. VIZIO, INC. et al, the FTC obtained a stipulated (agreed) settlement with a permanent injunction against, and payment of over $2 million from, Vizio, which is one of the largest television manufacturers in the world.

The FTC alleged Vizio acquired from the video displayed on monitors and TV’s from viewers’ cable, broadband, DVD, over-the-air broadcasts, streaming devices, etc. very specific demographic information, and  second-by-second users’ viewing habits along with the viewers’ age, sex, marital status, size and income of the household, level of education, whether viewer’s owned their home and its value.  In addition, the FTC asserted Vizio sold the data to others, who used it for target advertising to consumers using other devices.

On February 6, 2017, a Stipulated Order for a Permanent Injunction and Monetary Judgment was filed with the United States District Court. Although Vizio denied any liability,  they were charged with participating in deceptive, unfair and unconscionable practices, misrepresentations, false promises, and omitting material facts in collecting and sharing viewers’ data while using the Smart Interactivity feature in over 10 million Vizio TV’s they sold. These are so called “smart” televisions and monitors that can connect to the internet.

Vizio agreed to disclose and obtain consent for the above data collection and sharing practices; and is prohibited from making false statements and misrepresenting the privacy, security &/or confidentiality of the viewers’ information they collect.

It is noteworthy, there presently is a consumer  Class Action lawsuit filed and pending against Vizio involving this subject matter.

Sadly, our respective rights to privacy and individual expectations of being free from daily intrusion from others, whether government, business, and/or others, are being compromised as we seek to enjoy the continuing benefits of the growing number and expanding scope of our electronic devices.

With this link, consumer information published by the FTC, one can obtain varied educational and enlightening topics and subject matter.

2016 New California Laws

There are about 800 new California laws that went into effect on January 1, 2016. Here are a few noted by the following topics:

Driving Under the Influence – drivers convicted of a DUI (whether alcohol or drugs) in four California counties [Alameda, Los Angeles, Sacramento & Turlare], under an existing program that will remain in effect until July 1, 2017 will be required to install an ignition-interlock device (IID) on their cars. The IID registers alcohol on the driver’s breath, and is designed to prevent the vehicle from starting based on a pre-determined level of blood alcohol.

Earbuds – earphones, headsets or earbuds in both ears cannot be used while driving a vehicle or bicycle

Electronic Surveillance – the police, sheriff and law enforcement must first obtain a search warrant before accessing your e-mail, text, social media, data and other electronic information, unless it is determined to be an emergency situation.

Gun ban – those who have a CCW permit (individual who may legally carry a concealed weapon) will not be allowed to bring their guns on school and/or college campuses without advance permission from the school or campus authority.

Gun-violence restraining order – individuals who fear a family member could hurt their self or others can apply to the court for a gun-violence restraining order to limit the person’s access to firearms for up to one year

Medical marijuana rules – a statewide agency will now license and regulate all aspects of the cultivation, manufacture, transportation, storage, distribution and sale of medical marijuana.

Motor-voter registration – adults who apply for or renew a California driver’s license will automatically be registered to vote, although one can opt out if you do not want to be registered.

School Children – must be vaccinated to go to public school

Toy guns – are outlawed (can’t be displayed) in public unless brightly colored such as red, pink or yellow

Work Pay – equal pay is required for men & women. It is not less burdensome for a female employee to challenge her employer if there appears to be a disparity in the pay women receive in contrast to men performing similar work. Employers are also barred from prohibiting workers from talking about their &/or their co-workers’ pay in order to determine wage fairness. The minimum wage in California is now $10/hr. However, fewer minimum wage earners now work a full 40 hour work week as a result of the expanded wage, health, and benefit laws involved in operating a business.

This is a summary only and not intended to constitute legal advice. For the official webpage and guide of the Bills the California Legislature enacted in 2015, click: Bills Enacted in 2015

Identity Theft – What is the Real Story?

Identity theft can be characterized as a major scourge in society today. It has become a  growing danger, and as such it  currently is often labeled cybercrime and/or cyber espionage, with this fraud on the public becoming so pernicious that even major nationwide firms such as Target, eBay and Home-Depot; as well as financial giants such as JP Morgan Chase, Citigroup and Etrade have been hacked; regardless of the size of the business, there are many others that have been invaded but not yet discovered by their respective IT mavens, causing total havoc to millions of people all over California, the United States and even international destinations. This is the theft and use of an individual’s name, personal information, social security number, credit card and bank number, or illegally using any one, two or more of these pieces of extremely private and personal items, social information and/or data.

Were you aware there are cell phone tracking devices that also allow data to be collected? Stingray is a product of the Harris Corporation, which has annual revenues of approximately $5 billion dollars with about 14,000 employees and claim they not only serve government, but commercial businesses in over 125 countries. The Stingray and similar products track the whereabouts of cell phones, but can also be used to spy and eavesdrop on telephone calls as well as text messages. While there clearly are legitimate interests served, we are on the threshold of a new era in technological advances that unfortunately impact the meaning and purpose of the Fourth Amendment right to privacy. At the time of writing this Blog, Israel has announced it is taking measures to become a cyberwar superpower. Their program is being launched in high school with a national goal of creating cyberwarriors in their pursuit of cybersecurity.

Often the unsuspecting public responds to a telephone call, an email or text in which the person sending it is located in a foreign country but that is not necessary and even if so, it may not be obvious or apparent. These criminals perpetrate their fraud by gaming the unsuspecting public. In some cases, the thief elicits private information on the pretense they are going to provide a free cruise or gift; at other times, they claim to offer a refund; in some cases they might report your account as having been hacked (by someone else) and they want to confirm you are the true owner in order to correct the crime and, therefore, under the pretense of good will ask to verify your personal and private information, only to commit identify theft. When they use correspondence more frequently than not, they duplicate logos and other official looking names (for example, they may use what appears to be an authentic bank email, but change a letter, number and/or use a different web mail system). In addition, by steering you to links and attachments to emails to what may appear to be safe invitations, secure and legitimate websites, they instead are able to hack your computer, cell phone, laptop and/or tablet, which thereby causes problems that can be insurmountable. Your electronic device then is mined without you knowing for otherwise private and seemingly protected data. The hackers have the ability to seize your computer, mobile device,  laptop and cell phone,  and if they choose lock it so you cannot operate your device. Then, they have the ability to literally take over and steal all of your banking information, photos and images, and otherwise have access to everything you choose to maintain on such devices, becoming an open book to your entire private and social life.

With stolen information, an unscrupulous thief using your personal data can and will often apply for a tax refund, and then in filing a tax return request the refund be sent to a different address. It appears at the present time the IRS in its effort to get a refund processed quickly does not possess and/or utilize software to first perform adequate and complete cross checks to prevent this from happening. By the time it is caught, the thief has found other sets of private information for countless other individuals and uses it to obtain multiple refunds again and again sent to different addresses as well. Your identity and social security number can be used unlawfully to obtain unemployment benefits, file insurance claims, and nearly every other illegal enterprise they think they can master and, therefore, you have become a victim of identity theft.

If you believe you will not be exploited by using digital communications (perhaps even without identity theft taking place), ask yourself if you or anyone you know has included a particular subject in an email, text or correspondence only to find in minutes there is an advertisement involving the same subject matter that pops up on your screen. This is how the search engines gather data to finance their operations as they sell leads to advertisers.  Sadly, the more information on one’s social media pages and ease with which it is mined also serves to enhance the criminal’s credibility by supporting the otherwise protected identity that is stolen.

Perhaps knowing the above may prevent identity theft if you choose to not open an email, text message or respond to a call if it is, or you have reason to believe, even remotely suspicious. Some choose to select the incognito setting so when they navigate the internet their searches are ostensibly private. However, that is inaccurate since  your search is not concealed from the websites you navigate for information, nor the internet service provider you use, and can still be accessed by your employer.

The Federal Government National Security Agency (NSA) forbids the reporting the very fact the government has made a request and the release of personal information they seek, for example,  from the internet  search engines and social media sites. The Government has for many years accessed internet communications and telephone records on the grounds it is necessary for the safety of the public in their efforts to identify and catch those that engage in criminal activity and/or terrorists. More recent in their endeavors have been the required production of emails, video chats, texts, and pictures to name a few of the data streams they continue to request. However,  several of the major entities recently were able to reach a settlement allowing them to disclose to the public limited information they provide to the government every six months. On October 7th, Twitter filed a lawsuit against the FBI and the U.S. Department of Justice arguing on the basis of the First Amendment to the Constitution and freedom of speech that Twitter should not be barred from full disclosure to the public of the surveillance being done by the government.

There are a few steps you can take if you are a victim of identity theft. First and foremost, be extremely cautious before opening any email, text or communication unless you are certain from whom it came, being totally adverse to opening attachments unless you are 100% confident they are safe and secure. You can purchase software programs that are designed to prevent malicious software from taking over your computer; it will alert as to whether the internet site you wish to navigate and explore is safe and secure, or dangerous. But, these safeguards afford no 100% guarantee.

If you are a victim of cybercrime, identity theft or cyber espionage, contact law enforcement to report the crime and get a copy of the incident report that is created after you filed the report as this will be your hard evidence to corroborate a future claim (if that is any consolation). Second, you should report this to the three major credit reporting bureaus. Then, contact the various creditors who have issued credit cards to you, talk to their fraud department to cancel your existing cards and have new ones issued. It is also recommended you change all of your user names and passwords on your electronic devices and accounts. Some advocates believe this should be a regular project you do as well to hopefully prevent identity theft.

 

 

Is The Right to Privacy Compromised via Emails, Text, Cell Phones or Browsing the Internet?

Dating back to 1789, the Bill of Rights was enacted establishing personal freedoms to protect the public from and thereby limit the Federal Government. Not very long after, the states ratified these laws so these freedoms applied equally to action by state governments. The Fourth Amendment to the U.S. Constitution was adopted in response to the abuses of the British government and to prevent unlawful searches and seizures. The earlier decisions of the U.S. Supreme Court interpreted the 4th Amendment to bar actual and physical intrusion by law enforcement into &/or on one’s private property. Later decisions, however, rightfully expanded the limitations on the government to our individual rights to privacy.

But the question of governmental intrusion is no longer the only conundrum we face in society. There is what could be labeled a scourge of interference in our right to privacy through expanded and invisible electronic surveillance (for the purpose of this blog, however, the author is not referencing CCTV or other types of concealed commercial video cameras).

Focusing instead on the internet, our email, cell phones and text messages, have you given any thought to the impact on our right to privacy, a concern that did not exist during the previous four centuries? Today, businesses are extracting information from the content of our messages, whether email, text, cell phone or simply browsing (surfing) the internet. They are recording the words we use and the places we visit to build profiles of who we are and our interests, collecting the data and selling it to other companies.

Should you have a concern that businesses and individuals are able to and actually monitor and secretly eavesdrop into our private lives? For example, one decides to go online to research the availability and prices for binoculars for an outdoor event they intend to obtain tickets for, an otherwise ordinary and uneventful activity. The next time that individual searches the internet for something totally different, even a newsworthy article, there will be advertisement banners for binoculars in the headers of the pages. Similarly, customer data in our emails are scanned by the various email providers and soon thereafter one will view contextual advertisements dealing with words and subjects that otherwise one might believe his/her emails were totally private and protected.

What do you think? Should your personal information be your own? Should you have a right to privacy and expect that what you view online, what you write or receive in an email or text is not accessed by anyone, whether government, business or any private individual? Should heretofore unidentified companies know everything about us, our interests, our family and friends, under the stated goal to sell advertisements that are intended to solicit our business? Is there a risk of fraud &/or unlawful activity well beyond what may seem an ostensible commercial purpose when data mining produces what we heretofore believed were our very private personal profiles? You be the judge.

What are the Rights of Transgender Students in California?

Effective January 1, 2014, transgender students in kindergarten through the 12th grade must be accommodated.  The new law prohibits public schools from discriminating on the basis of gender, gender identity and/or gender expression. This means public school students must be allowed to play on sports teams, participate in extracurricular activities and choose which bathrooms and locker rooms they want to use based upon their gender identity and not their biological sex. California is the first state to pass such a law.

Opponents of the law claim they have collected enough signatures for an initiative that would be up to the voters to decide in November, 2014 whether to repeal the law. If that number when counted in the next week or so is reached, the law will be suspended in the interim. They contend it violates the sensitivities and rights of privacy of the vast majority of students for a tiny few. In addition, they assert the new law could easily be abused since it does not require a transgender student to have an established history, but it would allow anyone to summarily and suddenly claim they are a girl to use the girl’s facilities (and vice versa).

The proponents of the new law have argued, and the state legislature and Governor either expressly or impliedly agreed, there should be no distinction between boys and girls activities, bathrooms and/or locker rooms, as they only serve to discriminate against and, therefore, alienate transgender students.

The California School Boards Association contends existing state and federal anti-discrimination laws mandate such policies and practices even if the new law is repealed, and since 2003 school districts have decided on a case-by-case basis whether and how to accommodate transgender students.

On August 12, 2013, Assembly Bill 1266, Chapter 85 was signed into law by Governor Brown. The complete text of the law can be read by clicking the following link:  http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1266

Can Police Search Your Cell Phone?

In the current case of DAVID LEON RILEY, Petitioner v. STATE OF CALIFORNIA Respondent (13-132), the U.S. Supreme Court on a Petition for a Writ of Certiorari will review the unpublished Decision of the Fourth District California Court of Appeal and, hopefully, clarify whether the police may seize a cell phone from a person under arrest and search its contents.

 

In the underlying case, Riley was stopped by the police on August 22, 2009 for an expired vehicle registration tag. Soon thereafter, the officer determined Riley was driving on a suspended license (DSL) and impounded the vehicle. While documenting the contents of the vehicle, the officers discovered under the hood of the car two concealed and loaded weapons. Then, Riley was placed under arrest and the officers seized his “smart phone.” At this point, the officer searched the contents and discovered numerous contacts preceded by the initials “CK” (members of a criminal gang commonly known as “Bloods” or “Crip Killers).”  Another officer viewed the photos on the cell phone at the police station and noticed one in which Riley was standing next to a vehicle that he believed was involved in a prior gang related shooting.

 

Riley was accused of attempted murder among other charges, and under California law the DA also included a gang enhancement that increased the length of his sentence.

His lawyer sought to exclude the evidence on the basis of a warrantless search without exigent circumstances (that otherwise could justify the search) and, therefore, violated the Fourth Amendment of the U.S. Constitution. Riley was convicted and sentenced to 15 years to life whereas it would have been a maximum of 7 years without the gang enhancement.

 

The Supreme Court is likely to decide whether cell phones should receive special treatment as Courts have been divided and have reached inconsistent results, and because they store “virtually limitless” personal and private information, including access to the internet and even digital copies of private medical records. In the event it rules in favor of Riley, he could be retried with the evidence and contents of the cellphone being excluded.

More revealed about the reach of NSA

More has been revealed about the long reach of the National Security Agency.

They acknowledged on Wednesday that they can read and store the phone records of millions of US citizens. The phone records of each American are stored in a vast database that the NSA keeps.

There are serious concerns regarding our privacy and the government’s claim their unbridled surveillance is warranted. This topic will not only require continued debate, but some argue it should be subject to the vote of the majority of the population.

 

Commentary by SAM SPITAL, San Diego Criminal Defense Lawyer

Female inmates sterilized without approval

The Center for Investigative Reporting has found that almost 150 women were sterilized by the California Department of Corrections and Rehabilitation between 2006 and 2010 without state approval. Former inmates and prison staff both say that patients were coerced into being sterilized, and those who were targeted were often pregnant, and were those deemed likely to return to prison.

The tubal ligation procedure for prisoners has required approval from top medical officers on a case-by-case basis since 1994. No requests have come before the health committee, yet at least 60 were performed at Valley State Prison for Women, and many were performed at California Institution for Women.

It is disgusting to treat human beings in this way. These women’s bodies are their own, and have the right to decide whether or not they should be able to bear children. A licensed professional should not be able to manipulate and coerce people in this way. It is against the code of ethics and against human decency.

Some proponents will argue that society has a vested interest in the welfare of the children of those who lack good judgment. All taxpayers not only pay a huge sum of money to incarcerate criminal offenders, but for their medical conditions and/or diseases. Some pundits ask why we spend more money for each staff to operate our prisons than we pay teachers.
As long as we debate the pros and cons of this and all other important  topics of particular interest, we will eventually reach a consensus if not a reasonable and proper solution.

2.5 million put at risk from security breaches in 2012

There were about 130 breaches of consumer data in California in 2012, according to a recent report. This put about 2.5 million people at risk.

The area that had the most breaches was the retail sector, with financial institutions and insurance providers following on the list.

Personal data being compromised is not only newsworthy but evinces a horrible scourge in society today. If we cannot rely upon our private information being protected by and with whom we conduct business, we will have to go back to the days of cash only and 100% anonymous transactions. It seems elementary that when we pay a fee to use credit cards and part of the cost of the items we buy of necessity includes an implied if not express promise our privacy should and will be protected. It is despicable that we cannot fully rely upon being safeguarded by these organizations, whether small or large, governmental or in the public sector.

 

Supreme Court Ruling Allows DNA Samples After Arrest

The US Supreme Court ruled on Monday that it is legal for the police to take a DNA sample at the time of an arrest for a serious crime.

The ruling came about after a court in Maryland said it was illegal for a police to take Alonzo King’s DNA. King was arrested for felony second-degree assault. When his DNA was checked, it matched the DNA connected to a rape and robbery case from 2003. King was then convicted of rape and received a life sentence.

As well as setting the policy for DNA swabs, the Supreme Court’s ruling reinstates King’s rape conviction, which was overturned when the Maryland court said that his DNA should not have been taken in the first place, since he was arrested for unrelated reasons.

The court was nowhere near unanimous on the issue, with five judges in favor and four dissenting.