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Amazon – U.S. CPSC Imposes Responsibility

In an order published this past Monday (July 29, 2024), the U.S. Consumer Product Safety Commission determined that, as it relates to products that are part of the “Fulfilled by Amazon” program, Amazon.com is a “distributor” within the meaning of the Consumer Product Safety Act. The “Fulfilled by Amazon” program includes over 400,000 products!

As a consequence of that determination, the CPSC held Amazon.com is legally responsible for safety and recall notices and required to take remedial action when products are found not to be non-compliant with US safety standards and requirements or are defective.

While Amazon.com argued it is not responsible for products sold by third-parties and is simply a logistics provider, the Commission disagreed and noted Amazon.com receives the products at its distribution centers, stores them and eventually delivers them to customers – activities the Commission believes demonstrate sufficient control to put Amazon.com squarely within the meaning of a ‘distributor’ as defined in the CPSA.

While Amazon.com plans to appeal the Commission’s order, the order requires Amazon.com to develop and submit plans to notify consumers of hazardous products (Section 15(c) of the CPSA), to “take remedial actions under Section 15(d) of the CPSA to incentivize the removal of these hazardous products from consumers’ homes,” and discontinue distribution of defective or non-compliant products.

A spokesperson for Amazon noted that when notified by the Commission years ago about certain third-party products with potential safety issues, Amazon.com promptly notified customers, advising them to stop using them and issued credits or refunds.

The order issued this past Monday, stems from an appeal of a decision of an administrative law judge.  You can read the entire order of the CPSC here: In the Matter of Amazon.com Inc. CPSC Docket No. 21-2.

 

 

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SXSW South by Southwest Conference

As some of you already know, South by Southwest ®(SXSW) is one of the world’s premier events showcasing music, film and interactive media. This internationally-recognized event has live panels, special events, cinema and combines entertainment and educational activities in a conference and festival atmosphere.  The event takes place annually in Austin, Texas in the United States – this year between March 8th and 16th, 2024.

I have made a proposal to participate by making a presentation entitled “Legal Implications of AI: The Good, the Bad and the Ugly” and voting by the online community is now live!  That allows the public to help the organizers decide on ideas that are the most creative, innovative, and relevant for 2024.  Starting today and until August 20th (11:59 PM PT), you can see my proposal and vote using this link: Legal Implications of AI: The Good, the Bad and the Ugly.  I hope you will vote to include my presentation in the event.

My objective is to make the presentation interactive and entertaining, including some potentially innovative uses of AI to make the point. What do I want to talk about? First, how does current law deal with the film, television, music, art, literary industries – what are the challenges and the opportunities. Second, how can celebrities, sports figures, creative artists and talented professionals protect themselves while also exploiting the evolving technology. Of course, last but not least, is it too soon to start regulating AI? If so, what are we waiting for? If not, how do we even suggest regulation when we can’t predict where we are going?

I won’t pretend to have all the answers, but I will try to provide an enlightening, stimulating and thought provoking presentation – and yes, entertaining!  Again, I would appreciate your vote:  Legal Implications of AI: The Good, the Bad and the Ugly.

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Unsung Cyber Hero Adventures

On June 4, 2020, Steven Teppler and I (Joe Rosenbaum) were guests of Gary Berman, host of “Unsung Cyber Hero Adventures”.  You can watch the entire interview “The Judicial System & Cybersecurity” and many more on his “Unsung Cyber Hero Adventures” TV Network!

There is also a comic series and you can find out more by looking at  The CyberHero Adventures: Defenders of the Digital Universe.  The comic series, the streaming interview series and much more are all the brainchild of Gary L. Berman, a career marketing consultant and entrepreneur whose company – and the families it supported – fell victim to a prolonged series of insider cyber attacks.  Feeling powerless, Gary decided to educate himself about cybersecurity, attending conferences, listening to podcasts and learning from the real heroes, the cybersecurity experts in law enforcement, government, education, and business.

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Crisis Management at the Intersection of Marketing, Privacy, Security and Reputation

For those of you interested and available, on Thursday, April 23rd at 1 PM ET, Joe Rosenbaum, NY Partner at Rimon Law and chair of Rimon’s Global Alliance will be conducting a one hour seminar entitled Crisis Management at the Intersection of Marketing, Privacy, Security and Reputation touching on some of the current issues in marketing, privacy, public relations, cybersecurity & reputation management arising from the COVID-19 pandemic.

While the issues raised may well apply in many crisis situations, now, more than ever, as increased numbers of people are working, schooling and playing at home or at other remote locations, the value of online and mobile advertising and promotions has increased substantially. At the same time, the amounts of information being made available by people scrambling for information, trying to keep up with breaking news, and signing up for online, digital services and information, present legal challenges for compliance with both old and newly enacted privacy and data protection regulation. Not coincidentally, online and mobile scammers are seeking to capitalize on the growing number of inexperienced web surfing consumers and cyber criminals are using the opportunity to capture valuable personally identifiable as a result of lax or relaxed security measures. The inaccurate perception that strong security may be an obstacle to utility or speed and simply the increased number of inexperienced users accessing the Internet, provide fertile ground for exploitation. What you should know? What you can do? What you should be telling your clients and employees? What can we all do to help?

To register simply go to REGISTER: Crisis Management at the Intersection of Marketing, Privacy, Security and Reputation

The course is open to lawyers and non-lawyers, is approved for New York bar members who are eligible for 1 CLE credit per course through NY’s Approved Jurisdiction Policy and approved by the California State Bar for 1 hour of CLE credit.  Most other states recognize CA accredited courses and if you would like credit in any other state, please check your local state bar’s regulations.

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Fake News, Troubled Celebrity Endorsements & Social Media

On Tuesday, July 24, 2018, I had the privilege of presenting a live, interactive, video-conference program and course entitled “A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media,” sponsored by Lawline.
The course was broadcast live and also recorded at Lawline’s Studio in lower Manhattan and is now available for on-demand viewing at Lawline.com. With permission, I have also posted a PDF of the PowerPoint visuals used during the presentation (although you will not be able to see the embedded videos) and you can view or download a copy for your personal use right here: A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media

As always, if you need more information, you can contact me directly (Joe Rosenbaum) or any of the Rimon attorneys with whom you regularly work.

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The Blockchain Ecosystem

Dror Futter, a Venture Capital and Technology Partner at Rimon, P.C. has authored a comprehensive update on the state of blockchain law, which has been published by The Journal of PLI Press, the quarterly journal of the Practicing Law Institute The Current, (Winter 2018 Edition; Vol. 2, No. 1, Winter 2018 – Page 21.   The article summarizes developments in the blockchain ecosystem to date, draws attention to considerations that participants in that ecosystem should take into account and also highlights many currently unanswered legal questions.

In addition to a growing blockchain practice, Mr. Futter focuses his practice on startup companies and their investors, and has worked with a wide range of technology companies.  You can read the entire article right here: Blockchain Law ICO Regulation and Other Legal Considerations in the Blockchain Ecosystem and if you need more information you can contact Mr. Futter directly or if you want to know more about his practice click here.  Of course, you can always contact me, Joe Rosenbaum, or any of the Rimon lawyers with whom you regularly work.

 

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Now That the FCC Has Acted . . . .

In case you missed it (see my previous Legal Bytes post Inter Net Neutrality), the International Law Office was kind enough to post an adapted version of the article in its IT & Internet Newsletter.   If you are not already a subscriber to ILO, you can read a PDF version of my post, Internet Neutrality, right here.  Now that the FCC has rolled back the Obama-era regulations, the battle continues to rage over whether that is good or bad for the Internet, the economy, innovation and each of the groups aligned on one side or the other of this fray.

Note for you historical buffs – the Internet was made available to commercial enterprises in 1981.  By 1984, “.com” had overtaken .gov, .mil and .edu as the largest URL suffix and it wasn’t until recently, during the FCC’s tenure under President Obama, that new regulations regarding neutrality were implemented.  I know, I know, times have changed – but be mindful that someone far wiser than I noted: “Those who cannot remember the past are condemned to repeat it.“

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Inter Net Neutrality

What an interesting play on words.  According to the Merriam-Webster dictionary, “inter” is a verb that means “to deposit (a dead body) in the earth or in a tomb.”

Earlier this week, the Chairman of the U.S. Federal Communications Commission (FCC) outlined plans to bury the Internet rules promulgated under the Obama administration that required providers of Internet services to treat all web traffic equally.  Those rules, among other things, limit the ability of ISPs to favor content or customers, to block or slow down the online services they provide.  Under the proposed changes, ISPs (wired and wireless) would be allowed to offer web-based services at different speeds and differing quality of service.  In addition, they could enable more favorable speed or quality, or both, for websites that paid a fee – as long as that relationship was disclosed.

Over the years, a lively and heated debate over the nature and extent of regulation needed to protect consumers without stifling innovation has continued.  Proponents of eliminating the rules claim that allowing the market to create different financial and performance models will spur investment and the development of technology, while critics argue that consumer prices would increase and so would barriers to entry and start-up costs for new companies.  Critics point to the airline industry (where the FCC net neutrality rules have never been applicable) as an example of the potential for harm – one U.S. air carrier provides easy access to one online video service which has paid the airline for such priority status, while others are not enabled with the same speed or quality.

Under the previous administration, the Internet and ISPs (both wired and wireless) were treated as utilities, virtually excluding them from regulatory oversight by the Federal Trade Commission (FTC), whose fact-based, case-by-case, analytical approach to regulation is generally perceived as more suitable (and friendly) for emerging technology and evolving markets.  Based on Chairman Ajit Pai’s remarks, in another reversal of the prior administration’s approach, it appears the FCC is now willing to share oversight with the FTC and have the FTC be responsible for monitoring ISP disclosures, determining if consumers are being harmed and determining whether these firms are engaging in anti-competitive or unfair trade practices.  The FCC indicated it plans to enact the new rules early in the new year.  Stay tuned.

If you have any questions or want more information about this or any Legal Bytes’ post, don’t hesitate to contact me, Joe Rosenbaum, a New York based partner at Rimon, P.C., or any of the other lawyers at Rimon with whom you regularly work.

 

 

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Global Social Media Handbook

I am proud to be among the 22 legal professionals, including 7 of my colleagues at Rimon, who contributed and co-authored a new book entitled Handbook on Global Social Media Law for Business Lawyers, published by ABA Publishing. This comprehensive work, sponsored by the Business Law Section of the American Bar Association, was co-edited by Valerie Surgenor, a partner in the Glasgow, Scotland, law firm MacRoberts LLP and John Isaza, my friend and partner here at Rimon, P.C.   Although principally focused on the United States, there are contributions from foreign lawyers in key regions around the world, including Canada, the European Union, Australia, Russia and Asia.

The Handbook deals with national and international law principles and emerging issues related to social media law, ethics, compliance and governance, including cybersecurity, cyber terrorism and risk management in a social media environment (e.g., hacking, corporate espionage, data loss and data breach); intellectual property issues in social media;  defamation, “fake news” and social media;  implementation of a social media crisis plan; use of social media as a tool in recruitment of employees and the privacy implications to employers;  promotional, endorsement and social media disclosure guidelines promulgated by the Federal Trade Commission in the US; and recent trends in UK and European social media legislation and regulation.  There is a separate chapter that discusses information and records management within the context of social media.

If you are interested, you can order a copy directly from the ABA (Handbook on Global Social Media Law for Business Lawyers) and of course, if you need more information or want to discuss your particular requirements with knowledgeable and experienced professionals, feel free to reach out to me, Joe Rosenbaum, or to any of the lawyers at Rimon with whom you work with regularly.

 

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Net Neutrality: Is the Cease Fire Over?

By Stephen Díaz Gavin  *

The way the U.S. Government regulates the Internet is back in play again. The outcome of the long running battle over “net neutrality” and regulation of the Internet – now more than 15 years old — is still uncertain. However, it is clear that the Federal Communications Commission (FCC) is stepping back from the stronger supervision of Internet Service Providers (ISPs) adopted in March 2015 under former FCC Chairman Tom Wheeler at the insistence of former President Obama.
On May 18, 2017, the FCC voted to release a Notice of Proposed Rulemaking (NPRM) to step back from the agency’s controversial March 2015 decision to treat ISPs as “common carriers” under Title II of the Communications Act. Instead, the “proposed rule,” will revert to classifying ISPs as providers of an “information service” and return jurisdiction over ISPs privacy practices to the Federal Trade Commission (FTC) – a clear indication of the direction the FCC will take under the current administration.
Law professor Tim Wu coined the term “net neutrality” in 2003.  As the FCC’s current Chairman Pai recently noted in an interview in the Wall Street Journal, the term “[i]s one of the more seductive marketing slogans that’s ever been attached to a public policy issue”.  Who can be against “leaving the Internet alone?” (“Why ‘Net Neutrality’ Drives the Left Crazy,” Wall Street Journal).   Apparently, many believe that it should not be left alone: the FCC received nearly 1.25 million comments submitted via the Internet in the three weeks following FCC Chairman Pai’s announcement that he intended to reconsider the Title II rules; nearly all opposing the proposal.
At the core of the dispute is the tension between the ISPs on the one hand, and streaming content providers like Netflix and Amazon, as well as Internet giants like Google and Facebook on the other.
Consumers fear a slowdown in service. The ISPs maintain the March 2015 common carrier regulation decision will stifle investments and ultimately produce what consumers fear:  a slower Internet.  Indeed, in the NPRM the FCC cited a decline in investment since the March 2015 Order in support of changing the rules.  The clash of interests highlights how outdated the old ways of government oversight of telecommunications have become. The Communications Act of 1934, was originally enacted to monitor the monopoly telephone provider at the time (ATT), based on the model of regulating railroad service and freight rates under the Interstate Commerce Act of 1887 – hardly a relevant basis for overseeing the backbone of 21st century technology.
The common carrier regulatory model prohibits additional charges for streaming content providers, which could be viewed as discriminatory. However, such a regulatory structure does not account for how ISPs pay for upgrades to maintain service quality as consumer demand increases for such content streaming.  Video content producers that stream large volumes of data, slow up Internet connections. Although the largest ISPs have agreed voluntarily not to charge the Netflix and Amazons of the world for doing so, where must the money come from in order to continue to upgrade capacity to maintain high speed download?  Retail consumers are concerned about higher rates, surcharges or deliberate “slowing” of service, yet these same consumers are customers of over-the-top online video gaming and streaming services that consume huge amounts of capacity.  Consumers always want more and faster service and they want it at the lowest price.
Given the current Republican majority, the FCC will likely eliminate Title II regulation of ISPs as it has proposed.  However, the decision can and will again be challenged in the courts (as has every prior rule on net neutrality).  Even if upheld by the courts, only Congress can define ‘net neutrality’ once and for all and give some degree of regulatory certainty to the regulations (which can be changed by a Democratic majority just as easily as the current Republican controlled FCC has done to the Obama era rules).
Net neutrality is now a hot political issue and despite current Republican majorities in both the House and Senate, it is uncertain whether a working majority in both exists that can adopt legislation to guide the FCC.  No matter who you are, in the debate over net neutrality, clearly nobody is neutral. Until Congress acts to give some greater definition to the term, successive FCC Chairmen will be able to reinterpret net neutrality as they see fit.

* This post was derived and adapted from a Rimon Law Client Alert “No Peace in Sight for Net Neutrality” by Stephen Díaz Gavin, who you can contact directly for more information.