This may be a surprise for some, but every website you visit has access to your IP (Internet Protocol) address, which is your unique location on the internet. Other information is also available, depending on "cookies" (saved text files that are used when you revisit a site), and what other data you permit websites to know about you, including personal identifying information. Finding IP addresses are how copyright holders of music have been able to figure out, with the help of internet service providers, who has downloaded their music.
Your IP address can also be used to direct unwanted advertisements targeted to you based on your web and social media habits determined by the sites you visit. But in the U.S., if a website privacy policy specifically says that it will not use your IP address, then the site may not use your IP address. If the website does use your address, then the FTC can enjoin the use and may fine the violator. However, if the website has no privacy policy or it is silent regarding the use of your IP address, the FTC can take no action to prevent use of IP addresses.
What makes privacy policies more complicated is that privacy laws outside the U.S. are very different. The European Union adopted the 1995 Data Directive (soon to be updated) that allows citizens of member states to inspect any computer that has information about them, and allows the citizen to correct any information. Note that unlike in the U.S., even emails are private to the employee in the EU. Other countries like Canada, Japan, and Australia have privacy laws that are similar to the EU.So if your client does business outside the U.S., you may need to understand the privacy laws of each country where it does business, to assist your clients with compliance and litigation. If your clients' servers are in other countries, the privacy laws may affect data on those computers. Therefore you need to understand these issues to best assist your clients.
EVIDENCE
A significant amount of evidence is created from social media. Trial lawyers can benefit the more they know and understand how people communicate with social media tools. During discovery in most lawsuits it is critical that lawyers review social media sites for evidence. Also lawyers often find important evidence on clients' websites such as marketing representations about how products will perform, or sales estimates, or individuals misrepresenting their education or business experiences.
Given the importance of social media and dependence by businesses of the internet, lawyers have to jump in and learn as much as possible about social media and other internet-related evidence, to be better prepared to help clients, and understand what witnesses and jurors experience every day.
Peter Vogel is a partner at Gardere Wynne Sewell, based in its Dallas office. He can be reached by email at pvogel@gardere.com.
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