Sweden Considers Making DNA Donated Purely For Medical Research Available To Police And Insurance Companies

from the so-what-if-we-promised-we-wouldn't? dept

When it comes to biometrics, you really can't beat DNA. You can always erase your fingerprints, or wear contact lenses to fool iris scanners, but there's no way of changing all your DNA enough to make it unrecognizable (even with the new CRISPR technique). Couple that with the fact that we are shedding DNA everywhere we go -- leaving tell-tale markers on everything we touch -- and you have the perfect surveillance mechanism. That's why earlier UK plans to give police access to medical databases are problematic, to say nothing of Kuwait's mandatory DNA database for all citizens, residents and visitors. Now Rick Falkvinge has written a post about troubling moves in Sweden:

Since 1975, Sweden has taken a DNA sample from all newborns for medical research purposes, and asked parents’ consent to do so for this research purpose. This means that over time, Sweden has built the world's most comprehensive DNA database over everybody under 43 years of age. But now, politicians are considering opening up this research-only DNA database to law enforcement and private insurance companies.

As Falkvinge points out, this is not just a betrayal of a trust, it is totally counterproductive:

This is, of course, an outrageous and audacious breach of contract with the parents who were promised the sample would be used only for the good of humanity in terms of medical research. The instant there's a mere suspicion that this will be used against the sampled newborn in the future -- as is the case now -- instead of being used for the good of humanity as a whole, people won't provide the DNA database with more samples, or at least not enough samples to provide researchable coverage.

The risk that Sweden might proceed down this road is also a reminder that once such huge databases are created, it is almost inevitable that one day someone will come along and say: "since we have this information, surely nobody could object to it being used to catch terrorists/pedophiles/rapists etc. etc." And as the news from Sweden shows, initial promises that such sensitive data will only be used for research are worthless, since they can always be revoked later on, and there is no easy way of removing the data once it is on the database.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: dna, information, insurance, law enforcement, medical research, police, privacy, sharing, sweden

Konami Ingeniously Fuses Two Things Everybody Hates: Insurance And In-Game Microtransactions

from the nickel-and-dime dept

Konami's Metal Gear Solid V: The Phantom Pain is a fantastic game. I'm about 70% through according to the game's completion status, and while in typical Hideo Kojima fashion the plot is an incoherent mess, the level of polish and detail in the game is unprecedented. But sometimes a great, well-reviewed $60 game just isn't good enough. What do you do when your game breaks all manner of sales figures and is universally acclaimed? Why, you suddenly decide to saddle it with a brave new form of annoying microtransaction, of course.

Konami's latest microtransaction for the game went live last week, and is essentially a protection racket for users who'd like to keep their character's home fort (aka "mother base") intact. Players can spend hours collecting resources in-game to build up their mother base with weaponry, staff, and other defenses. As you grow your micro mercenary empire you can also expand into what's called forward operating bases (FOBs), which other players can not only invade, but steal resources and staff from. Here's what it looks like in-game: Don't want this stuff stolen? You can now pay Konami for FOB insurance:

"Your FOBs are always at risk of coming under attack. Now, you can rest easy with FOB insurance (paid service). If you sign up for insurance, then during the insurance period you will be compensated for any materials and staff lost due to rival infiltrations...Staff/materials stolen by the rival will in fact remain on your base, and an identical amount of staff/materials will be handed over to the rival instead.

In other words, those who paid $60 for the game will have things stolen from them periodically, but those willing to pay more will avoid such a fate. Amusingly, just like real insurance, you have to keep consistently paying to remain covered, and there are a number of things the insurance won't cover:

"FOB insurance isn't a one-off payment either, with players required to renew the virtual insurance policy periodically in order to remain protected. Just like real-life, not everything will be covered by the policy either, including abducted staff being held in the Brig; wounded staff (although, staff lost due to death or extraction will be compensated); staff used in defence of the FOB; and nuclear weapons."

You pay for the insurance with MB coins, which can be bought with real cash payments ranging from $1 for 100 coins to $50 for 6000, or acquired (slowly) in-game for completing tasks. One-day of coverage will cost users 50 coins, three days costs 100, a week costs 200 and two weeks costs 300 coins. Now I personally don't give a damn as I tend to focus more on offline play to misanthropically avoid human beings, but for those who appreciate a little something called in-game balance, making the entire point of competing with other users irrelevant has justifiably raised more than a few hackles.

Filed Under: in game microtransactions, in game payments, insurance, metal gear solid v
Companies: konami

Zenefits Allowed Back Into Utah After Insurance Brokers Tried To Kill The Innovative Startup

from the killing-rather-than-competing dept

Late last year, we wrote about the ridiculous situation in which the state of Utah effectively banned Zenefits, the innovative HR software service provider that tons of companies now use. As we noted, Zenefits came up with a creative way to build a real business by giving away its (really useful) HR software for free: coupling it with an insurance brokering business. You get to use its software for free, and Zenefits also makes it easy for businesses to get insurance and takes a cut of those deals. Zenefits started out by first just building the software, but then realized that it could tack on this business model after it found that most insurance brokers collect huge fees without really doing anything all that useful. So here, Zenefits could provide a more useful service, offer it to companies for free, and have a really successful business model. A win for everyone. Well, except traditional insurance brokers who found it more difficult to compete.

And thus, the Utah Insurance Department, run by former insurance broker Todd Kiser, declared that Zenefits broke a bunch of rules in Utah by daring to give out its software for free. Kiser determined that this violated rules against "inducements" or "rebates." This was from the ruling against Zenefits last year:

Zenefits' providing free software use of its electronic platform and dashboard violates Utah's inducement and indirect rebate insurance laws. By Zenefits offering clients the free use of its electronic platform and dashboard, by which employers can control and coordinate payroll functions and manage tax-related elections; generate tax forms; access FSA, HSA, and accounts; and administer 401k retirement savings plans and stock options; Zenefits has created a significant free inducement for clients to purchase insurance products through Zenefits. This software use is neither part of the insurance contract nor directly related to the insurance contract. Also, Zenefits connecting of the various HR benefits and insurance together creates advantages for customers to have a single internet access site to manage all HR and insurance needs; however, again, because Zenefits does all of this for free, it creates an violating inducement and indirect rebate for clients to purchase insurance through Zenefits.

Thankfully, Utah policymakers appeared to realize fairly quickly just how backwards and anti-innovation this made the state appear. A bill -- HB 141 -- was quickly produced, modifying the state insurance code to make it clear that software like Zenefits was not considered an inducement or rebate. The bill overwhelmingly passed out of both legislative houses. And, as of this morning, Utah's governor Gary Herbert signed the bill allowing Zenefits to operate freely in Utah once again.

It's good that the state reacted quickly to make this possible, but it still seems ridiculous that it had to get to this stage in the first place. Innovation shouldn't be dependent on incumbents not getting upset and/or having to convince an entire legislative body and executive branch to change the rules just to let you provide a better service that people like.

Filed Under: competition, hr software, innovation, insurance, insurance brokers, todd kiser, utah
Companies: zenefits

New Utah Law Instructs Cops To Seize Uninsured Vehicles

from the good-intentions,-bad-law dept

Does the government really even need excuses to seize the assets of its citizens, especially for relatively minor crimes? Apparently it does, at least according to the state of Utah.

A new law that went into effect on Jan. 1 changes the wording and adds provisions to a law that has been in effect since 2008 allowing officers to impound a vehicle that isn’t insured. The crucial verb that was changed, raising sides between those in favor and those opposed to the revised law, is the shift from the law previously stating that an officer “may” seize a vehicle without warrant if it’s being operated without insurance to the fact that now an officer “shall” seize said vehicle.

The wording change makes it mandatory. What was always an option is now expressly a command. The senator behind the new law feels this is necessary despite uninsured drivers really not being much of a problem in his home state.

Even though the sponsor of SB 72, Sen. Lyle Hillyard, estimates Utah’s current rate of uninsured drivers at 3 percent, much less than the national average of 12.6 percent, he says it's still enough of a problem to address.

No problem is too small. That's your government at work, Utah citizens. Will this new law lead to the sort of abuse witnessed in other areas of the country? Well, maybe. The low uninsured driver rate is one of the few things preventing this from becoming the full-blown, corrupt mess it is in other jurisdictions. The other factor is the restrictive language in the law, which provides for a surprising amount of protections for the public.

Officers are supposed to make a "reasonable, independent effort" to verify the vehicle is uninsured before seizing it. This means they can't simply seize it because the driver isn't carrying an insurance card. The claimed insurance company will need to be contacted before the vehicle can be seized, along with the owner of the vehicle (if said owner isn't the one driving). The amendment also authorizes an account for funds to be set aside to repay towing and storage charges incurred for vehicles wrongly impounded. (Of course, this requires the affected person to prove that the vehicle was wrongly impounded, but hey, at least there's some sort of due process, even if it occurs after the vehicle has already been seized.)

That's the good news. The bad news is that it gives law enforcement yet another way to take property away from citizens. It encourages trolling for seizures by turning the Uninsured Motorist database into a shopping list.

Then there's this. What if the driver's insurance agent isn't available at the time of the incident?

Another commenter unhappy with the new law said how she had been pulled over previously and had shown up as being uninsured. Because it was Saturday, the officer couldn’t reach her insurance agent but was kind enough to let her go with a warning. By the new wording in the law, unless there is reason to believe the woman’s safety is in question, the officer “shall seize” her vehicle.

There's still no due process involved (pre-seizure) and vehicles are automatically deemed to be "guilty" of being driven without insurance. As far as criminal acts go, driving without insurance is on the low end of the spectrum, but the consequences are on par with drug trafficking or fraud.

Sure, every driver should have insurance, but this isn't a perfect world. There are very few good reasons why someone might drive without insurance, but the real world sometimes gets in the way. Payments might be missed and the reinstatement amount might be too high to pay in a lump sum. Some people are simply uninsurable due to their driving record -- or even solely because of their credit record.

This law seems about as close to abuse-proof as any asset forfeiture law, but it still has several problems, not the least of which is the demand that vehicles be seized (rather than left to officer discretion) and the reliance on law enforcement to carry through on "reasonable, independent verification." The nod to the "safety" of those whose vehicles can be seized ultimately means nothing. Past incidents have shown officers are more than willing to seize vehicles and leave drivers stranded on the side of the road. "Public safety" is generally invoked to assist in civil liberties violations -- like skirting warrant requirements or seizing recording devices -- not to actually ensure the "public" is any "safer."

As with any law that authorizes the seizure of property by the government, there's a potential for abuse. For a state with such a low uninsured driver rate, this law is overkill.

UPDATE: Eric Holder recently announced decision to eliminate states' participation in asset forfeiture programs is a move forward -- one that closes a loophole used by law enforcement agencies to bypass states' restrictions on seizures. However, it will have no effect on this program as this doesn't involve federal participation. So, there's still significant room for abuse in many states' programs, ones that will need to be closed at the local level.

Filed Under: cars, insurance, seizures, uninsured vehicles, utah

DailyDirt: Avoid Crowdfunding Scams

from the urls-we-dig-up dept

Some crowdfunding projects are really impressive and have gotten a lot of attention and praise that is well deserved. However, there are also quite a few projects that haven't quite lived up to their promise. It's disappointing to say the least when a project gets over a million bucks and still fails to deliver a working product to its backers. Some backers get upset when their favorite crowdfunded project sells out to Facebook. How can companies like Kickstarter and Indiegogo and the like deal with these problems? There might be escrow schemes or insurance policies that could help, but in the end, it seems like buyer beware is the ultimate answer. Here are just a few links on this situation of dealing with crowdfunding disappointments and outright scams.

• Indiegogo is trying out an optional insurance feature that would provide a refund if the project fails to deliver its product within 3 months of its estimated delivery date. So far, this insurance policy is in testing and costs $15, so it doesn't apply to every (or even many) campaign on Indiegogo, but it's an interesting way to provide backers with some kind of guarantee that their faith/money is not being completely misplaced. However, it looks like only 3 people have tried it, and we'll have to wait until early 2016 to see if those folks will qualify for a insurance claim. [url]
• Kickstarter is generally seen as dominant crowdfunding platform, and the company behind it wants to be known as a responsible corporation. Will being named a Certified B Corporation boost Kickstarters reputation at all? Or will its certification simply be taken away if more backers are dissatisfied when projects don't deliver as promised? [url]
• It's not hard to find crowdfunding projects that just won't work.. because physics or the second law of thermodynamics. Maybe crowdfunding platforms need to crowdsource some peer review for a project approval process? [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: buyer beware, certified b corporation, crowdfunding, crowdsourcing, customer service, escrow, insurance, reputation, scams
Companies: indiegogo, kickstarter

Utah Wants To Kill Zenefits For Giving Away HR Software For Free

from the no-disruption-allowed dept

Another day, another example of regulators protecting legacy businesses and trying to shut down quite useful disruptive innovations. Zenefits is an incredibly fast growing company that has become the rather de facto standard for HR software for startups in Silicon Valley. Part of the key? It gives away the software for free -- software that, from competitors, costs quite a lot (to the point that many startups don't adopt HR software until much later in their lifecycle). A great NY Times profile from a few months ago detailed the rise of Zenefits and how its business model developed. In short, Zenefits had started building some online HR software, and was trying to figure out a business model, when it realized that it could give away the software for free and just get commissions by also acting as an insurance broker. The full story is much longer (and fascinating), but here's a snippet from that profile:

When businesses buy health coverage for their workers, they often go through brokers, who play the role that travel agents once did for the airlines. They are middlemen who figure out the best fit between buyers and sellers of health care, then take a percentage of the sale. And the commissions can be quite hefty. After connecting a small business with a health care provider, a broker collects a monthly fee of about 4 to 8 percent of a company’s health premiums.

The commission rates are set by care providers and aren’t usually disclosed to the small-business purchasers. But the fees amount to several hundred dollars or more per employee annually, and they generally continue for as long as a business keeps its health coverage. The broker collects the monthly fee from the care provider even if the business never talks to its broker again.

“I was thinking, wait a minute, that is a ton of money, and these guys don’t do very much for it,” Mr. Conrad said. This presented an obvious business model for Zenefits. It would become a broker itself. Thanks to the Affordable Care Act, health insurance providers now publish set rates. This meant that Zenefits could offer brokerage online, letting small businesses buy health insurance pretty much the same way people shop for airline tickets.

From there, the "software" just became a hook and a selling point. Yes, it's still the core of the actual "business," but it's just an insanely effective promotion for the insurance brokerage part, which the company has also made super simple. Businesses pay the same exact price they would normally pay for their health insurance -- but they get this great HR software as part of the deal (and Zenefits collects the commissions that traditional insurance brokers would have collected for doing much, much less). Of course, as the article also notes, it's not easy to become a brokerage, but Zenefits put in all of the effort to become a registered insurance broker in various states to make this work -- and it's made the company grow like gangbusters.

And... of course, traditional insurance brokers absolutely hate it. The NY Times article noted that brokers have complained to regulators in four states, including Utah. And that brings us to the latest story. While the investigations in Texas and Washington went nowhere, in Utah, the Utah Insurance Department -- which is run by a former insurance broker named Todd Kiser (founder of Kiser Insurance Agency) -- has told the company that it has violated a bunch of rules for daring to give its software away for free. Specifically, the Insurance Department calls out [pdf] the fact that the free software somehow violates rules against "inducements" or "rebates" for insurance.

The full letter is an astounding example of regulations designed to protect incumbents over innovators. First it attacks the use of free software, despite the fact that the end result is better for companies:

Zenefits' providing free software use of its electronic platform and dashboard violates Utah's inducement and indirect rebate insurance laws. By Zenefits offering clients the free use of its electronic platform and dashboard, by which employers can control and coordinate payroll functions and manage tax-related elections; generate tax forms; access FSA, HSA, and accounts; and administer 401k retirement savings plans and stock options; Zenefits has created a significant free inducement for clients to purchase insurance products through Zenefits. This software use is neither part of the insurance contract nor directly related to the insurance contract. Also, Zenefits connecting of the various HR benefits and insurance together creates advantages for customers to have a single internet access site to manage all HR and insurance needs; however, again, because Zenefits does all of this for free, it creates an violating inducement and indirect rebate for clients to purchase insurance through Zenefits.

Nowhere does the Insurance Department appear to recognize that it's basically saying "offering a better product is illegal." Instead, later in the document, it flat out admits that its goal here is to protect the legacy players who didn't innovate:

Concerning Utah's insurance public policy and State interest, the Utah Insurance Department has the important responsibility to maintain a fair, competitive insurance business environment for all licensees. Some of the main purposes of the Utah Insurance Code are to ensure not only that insurance consumers are protected and treated fairly, but that licensees are also treated fairly within a financially healthy and adequate insurance market that is not only characterized by innovation, but also by fair conditions of competition for all insurance licensees. See Utah Code Sec. 31A-1-102. For these reasons, Utah's specific unfair inducement and rebating laws are strongly enforced.

In short, disrupting the old way of doing business is illegal, because the non-innovators can't keep up. The Utah Insurance Department further makes it clear that innovation that offers a better solution for companies who buy insurance is flat out not allowed under Utah law:

Insurance Department Bulletin 2010-7 emphasizes that a licensee that provides a benefit that is not specified in an insurance contract offered to an insured or potential insured is a violation of state law. This includes offering benefits not specified in the insurance contract at no cost or at a cost below fair market value. Also explained is the fact that providing other value added services not specified in an insurance contract are also insurance violations.

In short: offering insurance buyers a better deal is illegal. The state then says it will fine Zenefits and that the company needs to stop "violating" these rules, and instead come up with a "compliance plan." Of course, for Zenefits, the only really sensible solution is to not do business in Utah, meaning that Utah-based businesses are objectively (and significantly) worse off. That's crazy -- but it's the sort of ridiculous regulatory attacks presented to disruptive businesses all too frequently.

Filed Under: competition, disruptive innovation, incentives, innovation, insurance, rebates, regulations, todd kiser, utah, utah insurance department
Companies: zenefits

Former DHS Official Announces Plan To Sell Cyberattack Insurance

from the build-a-market-with-taxpayer-funds,-collect-upon-'retirement' dept

Our nation's top security guards are all retiring to go into the cybersecurity business. Former NSA chief Keith Alexander is asking (only) $1million/month for his cybersecurity consultations, which apparently include the use of patents he developed completely unrelated to his NSA work in his basement during his spare time.

Now, former top DHS official Tom Ridge is getting into the cybersecurity business, albeit one nowhere near as glamorous as Alexander's rockstar-level consulting service. Instead of showing up occasionally to offer his expertise (and collect paychecks) on cyberattack preparedness, Ridge will be performing the most "everyman" of services: selling insurance.

Ridge on Monday announced a new cyber insurance package that he said should make it easier for companies to safeguard their networks and their bottom lines.

“What we have seen is the sophistication of these attacks continue to elevate,” Ridge said at a launch event in London, according to Bloomberg news service. “Who would have thought that JPMorgan, with its security budget, could be hacked into? Now a lot of people are thinking if it could happen to them, it could happen to us too.”

The first Homeland Security secretary’s new company, Ridge Insurance Solutions Company, is teaming up with the insurance giant Lloyd’s of London to sell cyber insurance coverage.

When selling insurance, the old adage "can one have too much insurance of course not better safe than sorry here is some anecdotal evidence supporting my profitable belief" is doubly true, thanks to government agencies (such as Ridge's former employer) pushing a very fearful and apocalyptic narrative. At any moment, US businesses will be hit by "cyber Pearl Harbor" and former government officials like Ridge and Alexander are perfectly placed to take advantage of their own agencies' previous cyberthreat marketing warnings.

Ridge makes the claim that simply offering insurance will prevent attacks, which is an odd thing to say about a purely defensive product meant to mitigate post-attack financial damage.

Ridge said the new insurance is designed to help prevent those types of attacks.

In order to obtain insurance, companies will need to make sure their cyber defenses are up to snuff, which in and of itself should make businesses more secure, he predicted.

"This is not just about insurance but helping and incentivizing companies to manage their cyber operations more effectively,” Ridge said in a statement.

Ah. But mostly about insurance.

Insurance policies of as much as $50 million each are available from today... The company expects to generate $40 million in premiums in the first 18 months.

True, insurance isn't nearly as profitable if payouts are constantly being awarded. Hence the demands for up-to-snuffness. But it also helps if you've got a background in overselling the threat, which makes the product and its premiums seem miniscule in comparison to the potential damage. This would explain the press junket bearing headlines like "Ex-Homeland Chief Says Risk of Cyberattacks Elevated."

So, did Ridge join the DHS with the express intent of developing a market for his post-retirement dip into the private sector waters? My tin foil hat isn't that snug, but I'm sure his years of priming the cyberthreat pump factored heavily in his post-retirement job selection.

Here's a statement of Ridge's dating all the way back to 2003, as quoted in a United States Institute of Peace cyberterrorism report. [pdf]

“Terrorists can sit at one computer connected to one network and can create worldwide havoc,” cautioned Tom Ridge, director of the Department of Homeland Security, in a representative observation in April 2003. “[They] don’t necessarily need a bomb or explosives to cripple a sector of the economy or shut down a power grid.” These warnings certainly had a powerful impact on the media, on the public, and on the administration.

For instance, a survey of 725 cities conducted in 2003 by the National League of Cities found that cyberterrorism ranked alongside biological and chemical weapons at the top of a list of city officials’ fears.

The Hill points out that some critics are upset the government isn't doing more to protect companies against cyberattacks. I'm guessing Tom Ridge (and Keith Alexander) are no longer members of that group.

Filed Under: cyberattack, dhs, insurance, tom ridge

The Worst Legal Advice Ever, Presented By A Clueless Blogger For An Insurance Company

from the ouch dept

The internet is chock full of bad legal advice, but it's a bit odd to see it posted on a site for a large insurance company. Insurance company The Hartford* apparently has a website full of "small business" advice. This, by itself, is not a bad idea. Providing good content that people want is something that many companies should be doing. But the key here is "good content." Which brings us to the following article that's been passed around a few times among lawyers on Twitter. Officially, it's an article describing "5 Easy Ways to Get Sued Over Online Content & Social Media" written by Deb McAlister-Holland. Here's the stunning thing about it: nearly every word in the thing is dead wrong. Honestly, there's so much that's flat out wrong that we wouldn't even have the time to go through it all, unless we did basically nothing else today. So we'll just pick a few of the more ridiculous low-lights. It starts off with an unsubstantiated claim that the CFAA is the cause of "much of the rise in litigation," but then jumps right into the fire with a discussion on copyright infringement that begins with this line that is, uh, just wrong:

There is no defense against copyright infringement. Either you created it or paid for it, or you can’t use it. It’s that simple.

Except there are many, many, many defenses against claims of infringement, from fair use to de minimis use to copyright invalidity to the statute of limitations has passed and more and more and more. A simple Google search might help. Either way, if you're unfamiliar with the concept of fair use, you shouldn't be writing about copyright.

No receipt, no written permission, no link to a Creative Commons license? You lose.

Except, that's not true. I mean, let's just look at just a few of the cases we've written about in just the past few months, where there was no receipt, no written permission and no link to a Creative Commons license -- and in all of those cases, the person or company using the content won. This is just bad legal advice.

The automatic “remedy” for the winner is triple damages: you pay three times the value of the material on which you infringed. Who sets the value? The guy who is suing you.

None of that is even close to accurate. There's an entire section of copyright law 17 USC 504 devoted to remedies for infringement that you'd think someone writing about this would have (perhaps) Googled first. First of all, there is no "automatic" remedy. The judge or the jury sets the damages within certain guidelines. Statutory damages tend to be the standard, rather than actual damages. The "value" of the material is considered almost entirely irrelevant in statutory damages (and frequently irrelevant in the rare "actual damages" cases). Treble damages are only awarded in cases of willful infringement, and is not based on "the guy who is suing you."

So, if you can, take advantage of the “ safe harbor ” provision of the Digital Millennium Copyright Act (DMCA) and remove the offending content as soon as you are notified of a possible copyright problem. Just removing the offending content may not prevent you from being sued or being required to pay damages, but it can reduce the amount of damages owed in a successful suit.

At least this time McAlister-Holland actually references something associated with copyright law (the DMCA), but does so almost entirely incorrectly. Since the original setup of the piece is about "content marketer" (what the hell is that?) and writers getting sued, the DMCA safe harbors almost certainly wouldn't apply in the first place, since they're about protecting service providers (intermediaries) from infringement done by end users (such as the writer). So, while it's correct to say that the service provider can be protected via the safe harbors by removing infringing content upon notification, almost everything else is wrong. Also, the whole point of the safe harbors is that it does, in fact, stop you from having to pay damages. That's why it's a safe harbor. It has nothing to do with reducing the amount of damages. The original writer, however, may be sued either way, but the safe harbors do nothing to with the damages for that individual. Either way, the entire paragraph is a confused jumble of wrong.

Next up, McAlister-Holland suggests that people writing reviews online, such as on Yelp, are potentially opening themselves up to tortious interference claims. While it's true that angry plaintiffs in online review cases will almost always toss in a "tortious interference" claim in any lawsuit, the idea that a typical review will be tortious interference is laughable. And yes, you could get sued for just about anything, but it doesn't mean the lawsuit is legitimate. From there, she discusses defamation in a manner that is... misleading, at best. Here's a note: when discussing the specifics of a law, don't use non-legal dictionary definitions. She even brings up criminal defamation as a possibility, despite it being exceptionally rare. Besides, it's a very odd article that highlights criminal defamation but never gets into the details of the high bar associated with defaming a public figure (she only mentions that the rules vary based on public or private individuals, never explaining how or why). Also, this:

One thing to remember here is that defamation is in the mind of the reader and the outcome. Intent may (or may not) matter.

I don't even. "Intent may (or may not) matter"? NYT v Sullivan establishes that there needs to be actual malice in posting false information about public figures. Intent very much matters, and the "mind of the reader and the outcome" matter almost not at all.

She then cites... a Canadian case to prove her point. She might want to research the (rather extreme) differences between US and Canadian defamation laws. I mean, she might as well pick on defamation laws from the UK or, hell, Saudi Arabia, if the intent is to warn you to avoid any global defamation.

The final section is on publicity rights, and again, gets an awful lot wrong:

The right of publicity is what can bite you if you’re one of those people who posts every photo you take on Facebook, with no regard to the preferences or feelings of other people in the photo, or when you use material that is strongly identified with a person. It’s why all those “tribute” bands are “tributes” instead of knock-offs: words matter, and how you present someone else’s intellectual property matters.

Now, publicity rights are state-based laws, and they vary greatly by state, but I'm hard-pressed to see how any of the situations listed above have anything at all to do with any publicity rights laws. Publicity rights laws tend to be about preventing the commercial exploitation of an individual's identity -- with the most standard example being using a famous person's likeness in an advertisement without their approval, suggesting an endorsement.

So get permission before you publish long excerpts from someone else’s blog (or, heaven forbid, pick up and reblog the whole thing as a “guest post” when they were never asked if they were willing to be a guest blogger on your site), and especially get permission before you publish photos of any identifiable person (that means someone who could be identified in a photo, whether you know who they are or not) without their permission.

So that first part has nothing to do with rights of publicity, but is a copyright issue (which you'd think she'd know given that she has a section on copyright in this very article). And while there might be some cases where you could argue that posting a photo of an identifiable person without permission might lead to a publicity rights case, it's a stretch. There's the Katerine Heigl situation, of course, but that involved a drug store tweeting a picture of her carrying a bag walking out of one of their stores (and, even then, it seemed like a huge stretch for publicity rights). Merely posting a picture of someone famous to your Facebook? Not a publicity rights issue.

There's then a paragraph that walks back what she says, suggesting it is okay to post photos of famous people if you don't suggest they endorse "you." Then there's this:

The people most likely to lose their jobs or get sued for a breach of the right to privacy are health care workers, cops, teachers, and anyone who works for any government agency.

Huh? I don't even know what that means. How are health care workers violating someone's publicity rights?

And, then suddenly, we're back into defamation. Or something:

Context is important, too. If you pick up a generic photo of a bell man or hotel desk clerk, the individual pictured could make a claim for defamation (if it might be construed by the reader that the pictured individual provided bad service because the blog post is about a bad hotel experience).

Anyway, after some legal folks on Twitter started discussing the article, with Ken "Popehat" White summing it up as: "STOP MAKING PEOPLE STUPIDER, ASSHOLES," McAlister-Holland claimed that the piece was "heavily edited" from something she wrote, and that The Hartford version "introduc[ed] many errors." She further claimed that it "does not represent my work." However, others like Asher Langton pointed out that the original version, since deleted from her own website was still available via Google cache and archive.org, showing the same questionable analysis of the law.

She also claims that the link is "unauthorized": Except that The Hartford's site claims it licensed it via NewsCred, a marketplace that content providers such as bloggers can use to syndicate their work. Of course, if that's false (which seems unlikely), perhaps McAlister-Holland could have a legitimate claim of copyright infringement. Wouldn't that be ironic?

Anyway, there are lots and lots of problems with the article (even beyond the ones we discussed), but the real question here is why is a credible business like The Hartford reposting such crud? Not only is it woefully inaccurate, it only seems likely to encourage frivolous litigation based on repeating the bad legal theories in such a blog, now with the "credibility" of The Hartford behind it. That just seems like a bad content strategy all around.

*Disclaimer: Last year, The Hartford briefly sponsored a few of our posts, but had no editorial control over the content of the posts. And, we think those posts were significantly better than the crap discussed above.

Filed Under: copyright, deb mcalister-holland, defamation, insurance, publicity rights, tortious interference
Companies: the hartford

Dumb Criminal Tries To Pass Off Ice Blocks As iPads For Fun And Profit

from the the-i-is-for-ice dept

And here we go with another idiot criminal doing idiot criminal things. Every time we write these stories up, we're always left thinking that it can't get any stupider and we're always proved wrong. You'd think between the murder-plotting butt-dialers, LEO-taunting, and parish computer porn purveyors, no follow up act would qualify.

But then you read about an idiot trying to pull off postal insurance fraud by claiming several blocks of ice were actually iPads. Our story begins with Nathan Meunch, who walked into a UK Post Office sopping-wet, which he explained by stating it was raining when it wasn't, and then put a package on the counter which he said contained several iPads. He wanted to send this package via special delivery and fully insure them for the value of $4,000. After then claiming he couldn't recall what his own return address was, things went exactly as you've already guessed they went.

About an hour after Nathan dropped off his parcel and left, another post office employee noticed a puddle of water forming underneath the package. After investigating the cause of wetness, they discovered that the "iPads" were actually just blocks of ice. At that moment, it became clear that either something had gone catastrophically wrong at the Apple manufacturing plant, or that Nathan was trying to pull off a (terribly planned) scam.

But, because the Post Office is quite proud of their reputation for timely deliveries (snicker), and likely to make sure Meunch had all the rope required to build a super-awesome noose of self-destruction, they delivered the package anyway, which ostensibly no longer contained $4,000 worth of ice-pads. Right on time, the post office was hit for an insurance claim on the delivery. That's when the men were charged with fraud and the insults started coming from behind friendly lines.

The two men's scheme was easily exposed by the authorities, who charged charged both of them with fraud. At the trial, even Bennett's own lawyer referred to their plan as "rather pathetic." On Monday, August 12 of 2013, both Nigel Bennett and Nathan Meunch were sentenced to 12 months of community service, 150 hours of unpaid work for the court system, and a £500 (approximately $775) fine.

So way to go, Tweedle-Dee and Tweedle-Dum. Enjoy all that unpaid labor during the summer hours. And if you get a little toasty from all the effort, imagine just how nice it'd be to have a couple of blocks of sweet, cool ice lying around.

Filed Under: dumb criminals, ice blocks, insurance, ipad, nathan meunch, post office

DailyDirt: Save Yourself From The Zombies, If You Can...

from the urls-we-dig-up dept

If you're looking forward to Halloween, it's coming up in a couple days -- and there will probably be plenty of zombies roaming around your front lawn (if you have a front lawn). Just give them some candy when they come to your door, and they'll go away. If they keep coming back, start handing out rolls of pennies, maybe? Here are a few zombie-related links to help you prepare for this Wednesday.

• Some zombies aren't the undead, they're just unthinking folks who might be "in the zone" and focused on other things. Aren't we all zombies in a way? [url]
• ZAICO is the Zombie Apocalypse Insurance Company for all your post-apocalyptic needs. Don't get caught unprepared -- but maybe choose a low deductible plan because cash might be a bit tight after the zombies take over. [url]
• A mathematical model of how zombies spread tells us that we need to deal with the zombie apocalypse quickly or else things will get out hand rapidly and bring the end of civilization as we know it. But how would different kinds of international relations policies deal with a zombie threat? [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: apocalypse, halloween, insurance, undead, zombies