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Archive for May, 2012

U.S. Cross Border Ediscovery vs. EU Data Protection: Clash of the Titans

May 29th, 2012 by Monique Altheim
I recently gave a CLE presentation at the LegalTech West Coast Conference in Los Angeles on the legal problems and tensions of conducting U.S. civil litigation ediscovery in the European Economic Area (EEA), which consists of the 27 EU member states plus Iceland, Liechtenstein and Norway.
The subtitle “Clash of the Titans” derives from the fact that on the one hand the U.S. has the broadest pre-trial civil litigation discovery procedure on earth, while on the other hand the EU has the most stringent data protection framework on the planet. Trying to collect and transfer terabytes of data, most of which contain personal components, in the EU, where data protection is a fundamental right and very heavily regulated, is indeed quite a challenge.

In this presentation, I analyzed the U.S. jurisprudence on the extra-territorial application of  U.S. ediscovery obligations as well as the EU guidelines concerning personal data collected while conducting U.S. civil ediscovery in the EEA. I introduced the mostly American audience to principles of EU data protection.

Here is the slide deck I used for this presentation.

Legaltech West Coast: Cross Border Ediscovery vs. EU Data Protection

Earlier this year, I organized and moderated three panels on Ediscovery at the CPDP Conference in Brussels, where I introduced the unique U.S. civil ediscovery framework to the mostly European audience.
Here is the video of the cross-border ediscovery panel I moderated.

Thanks to my dual qualification as an attorney in the U.S., as well as in the EU, I am in a unique position to act as a bridge between the exclusively common law tradition of pre-trial ediscovery in civil litigation in the U.S.  and the EU tradition of data protection of personal data.

Tags: , , , , , , , , , , , . Conferences,Cross Border Data Flow,EDiscovery,European Union Data Protection,The Sedona Conference Closed

Are Facebook Users Giving up their Expectation of Privacy in Return for an Expectation of Imaginary Connection?

May 28th, 2012 by Monique Altheim

If you are like me, you post on Facebook in leaps and bounds.
I have periods of silence, followed by bursts of sharing of photos, links to articles and status updates.
During one recent prolific posting period of two weeks, I noticed that none of my posts had generated any reaction whatsoever: not a single “like”, not a single “comment”.
I was devastated. I had become invisible and ignored. I had become a Facebook outcast. I felt like I had stopped existing.
I feverishly scanned my 30 something posts since the last sign of human recognition, and started to wonder whether I had made a faux pas somewhere along the line.
Had I posted something too racy? Something too controversial?
Had I posted too often? Where my posts too boring, too irrelevant?
Had all my Facebook friends blocked me? Had Facebook censored me?
Then by chance, as I was talking to one of my close Facebook friends over the phone, I learned that he had just not seen any of my posts for the last two weeks. This started me thinking: what if none of my 180 Facebook friends had seen any of my posts either? What if the simple reason for the lack of engagement was that I had become literally invisible on Facebook? I decided to conduct a little poll among a random list of a dozen or so Facebook friends and tagged them in a post with the question whether they had seen any of my posts for the last two weeks. The response was overwhelming: none of my friends had seen them. Except for a couple of more sophisticated Facebookers, who had a gazillion friends and availed themselves of all sorts of filter tools and therefore might not have seen my posts due to their own decision of filtering me out, the majority of my Facebook friends were just regular folks with a manageable load of updates to sift through, who genuinely liked to find out what their friends were up to, without any filters whatsoever.
That could only mean one thing: something in the Facebook machine had decided that whatever I posted should be invisible to the majority of my Facebook friends. My invisibility was not caused by me, nor by my Facebook friends.
While, in the end, I succeeded in resolving a technical glitch that seemed to have caused my total invisibility, this rather painful experience started me thinking about the importance of visibility or reach on social media. No matter how fascinating, original or groundbreaking the post, if no one sees it, what exactly is the purpose of posting it?

I was reminded of the age old question of when a tree falls in the forest, but no one is around to hear it, does it make a sound?

A lot has been written about privacy, or rather the lack of it, online and especially on the social media sites. The common wisdom, at least in the US, is, that in exchange for the privilege of using sites like Facebook, one gives away one’s private data for monetization purposes by those sites. The user gets to use the platform in exchange for his/her data that the platform provider gets to use. Translated into legal terms, one could say that the user of a social media site like  Facebook gives up his/her “expectation of privacy” for an “expectation of connecting with friends”. Except that in the case of Facebook (and probably other sites as well), this exchange is seriously flawed.
When you talk within the physical walls of a room, you are immediately aware who you are talking to and how wide your reach is: your audience is right in front of you.
When the average Facebook user posts something on Facebook, he/she assumes that all his/her friends on Facebook are able to see that post.
What the majority of Facebook users do not realize is that, according to a recent study, the average post is only visible to 12% of one’s Facebook friends. Facebook’s secret algorithms decide which post is seen by which friends. When you subtract from the 12% visibility all the friends who do not regularly check their news feed, or do not get notified of new posts and also subtract from the 12% the more sophisticated Facebook friends who have siloed  their friends into lists and groups and who have not included you in any of those and you are left with a very puny audience indeed.
The average Facebook user has 150 friends. The average Facebook user is also led to believe that all his posts will be visible to all his 150 friends. In reality, the average Facebook user’s post is visible to a maximum of 10 to 15 friends.
If the new paradigm is the exchange of private information for the opportunity to connect with friends, then social media sites like Facebook are not only not keeping their end of the bargain, they are also misleading their users concerning the exchange.
The agreement between the Postal Services and the users is that the user writes down an address and glues the required stamp on the envelope and the Postal Services delivers the letter. If the Postal Services would only deliver 12% of the mail you sent, you would righteously be outraged and start a law suit: you have a right to expect that each letter that you put the appropriate stamp on, gets delivered (or at least almost each letter, taking into account inevitable mistakes in delivery). Otherwise, you should only have to pay 12% of the stamp value. The same logic should apply for each status update on Facebook: with each status update, you give away private data that Facebook monetizes. You have a right to expect that each update gets delivered to its intended audience: your Facebook friends, at a minimum (unless you set your privacy setting to “only me”). By limiting the amount of your Facebook friends who can see your posts to 12%, Facebook is not keeping its purported end of the bargain. The whole concept of Facebook is built on the idea that one can share information with one’s Facebook friends. Facebook does not inform its users that they will only be able to share with at most 12% of their friends. The average Facebook user has a rightful expectation of reaching all his/ her Facebook friends with each update. Facebook monetizes 100% of all user’s updates, but gives only 12% of friend connection in return.
To add injury to insult, Facebook now plans to charge users who want more than 12% of their friends to see their posts on their news feeds, a few $$ per post with their new “Highlight” program.
To use the analogy with the Postal Services: this is the same as if the Postal Services would announce that if you want more than 12% of your letters to be actually delivered, you must pay a hefty premium ( on top of paying for the stamp). Otherwise, you can just continue to write the letter, pay for the stamp, send the letter, but sorry, only 12% of those letters will be delivered.
As far as I am concerned, I did a simple math exercise: I have around 180 Facebook friends. 12 % of 180 is 21.6. Out of the 21.6 friends who might see my post in their feeds, at least a couple will be too busy to check their newsfeed regularly and another couple will not have me included in the lists or groups that they do check. I am now down to approximately about 15 friends who might see my post. Out of those, maybe half will be inclined to occasionally engage with my posts. After making a cost/ benefit analysis of the time and effort it takes me to post, and the loss of privacy I experience by having each post monetized to third parties on the one hand and the benefit of connecting and sharing with a very small audience of maybe 15 Facebook friends on the other hand, I have come to the conclusion that the ROI is just not there for me.

Even a Facebook superstar with the maximum allotted 5000 Facebook friends, will only get a maximum reach of 600, and will have no say in who those 600 are, since they will be secretly and algorithmically determined by Facebook.

The only chance of ever reaching a significant audience is to make all your posts public and get hundreds of thousans of subscribers. Or to create a public Page, and get millions to “like” it.

Over time, Facebook has morphed from a site, where one could keep up with one’s friends, to an all-in-one Twitter, Google+, Pinterest wannabe public forum. Personally, if I want to post to those kinds of public fora, I post to Twitter, Google+, and Pinterest.

Where should I go to share with friends?

I am looking forward to reading your comments.

 

 

 

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Tags: , , , . Filter Bubble,Online Privacy,Social Media 2 Comments

Twitter Weekly Updates for EUdiscovery

May 25th, 2012 by Monique Altheim
Tags: , , , , , , , , , , . Online Privacy Closed

Twitter Weekly Updates for EUdiscovery

May 18th, 2012 by Monique Altheim
Tags: , , , , , , , , , , . Online Privacy Closed

First Infographic

May 15th, 2012 by Monique Altheim

A first try at Infographics. Tweet it, Like it, Pin it, Plus it and most of all, Like The Law Office of Monique Altheim!


create infographics with visual.ly

Tags: , , . Online Privacy,Social Media Closed

Twitter Weekly Updates for EUdiscovery

May 11th, 2012 by Monique Altheim
Tags: , , , , , , , , , , . Online Privacy Closed

Twitter Weekly Updates for EUdiscovery

May 4th, 2012 by Monique Altheim
Tags: , , , , , , , , , , . Online Privacy Closed