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3Document Number© 2015 GARFUNKEL WILD, P.C. Investigating the Online Attack and Developing a Strategy to Address ItTRANSCRIPT
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Document Number © 2015 GARFUNKEL WILD, P.C.
Protecting Online Reputations: Surviving and Prospering
in the Online WorldOctober 15, 2015October 15, 2015
Presented By:
Kevin G. DonoghueGarfunkel, Wild P.C.
[email protected](516) 393-2535
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Presentation OverviewPresentation Overview
Investigating the Online Investigating the Online Attack and Developing a Attack and Developing a Strategy to Address ItStrategy to Address It
Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
Case StudiesCase Studies
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Investigating the Online Investigating the Online Attack and Developing a Attack and Developing a
Strategy to Address ItStrategy to Address It
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Investigating the Investigating the Online AttackOnline Attack
Who is attacking you?Who is attacking you?
What type of online attack is it and where What type of online attack is it and where is it located?is it located?
Fact gathering at the outset is crucial to Fact gathering at the outset is crucial to developing an effective, cost-efficient plandeveloping an effective, cost-efficient plan
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Developing a Strategy to Developing a Strategy to Address the Online AttackAddress the Online Attack
Be very aware of anyone who offers to Be very aware of anyone who offers to assist by rushing to the simple, cookie-assist by rushing to the simple, cookie-cutter “quick fix”cutter “quick fix”
The proposed strategy will be driven by The proposed strategy will be driven by the underlying factsthe underlying facts
Many issues factor into approach to be Many issues factor into approach to be takentaken
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Developing a Strategy to Developing a Strategy to Address the Online AttackAddress the Online Attack
The protocols, if any, to which the website The protocols, if any, to which the website in question adheresin question adheres• Review website’s Terms of ServiceReview website’s Terms of Service• Identify those provisions of the Terms of Identify those provisions of the Terms of
Service that are violated by the online attackService that are violated by the online attack
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Developing a Strategy to Developing a Strategy to Address the Online AttackAddress the Online Attack
Other considerationsOther considerations• Client ConcernsClient Concerns
Economic costs to clientEconomic costs to client Noneconomic costs to clientNoneconomic costs to client Client’s tolerance for riskClient’s tolerance for risk
• Legal ConcernsLegal Concerns Jurisdictional issuesJurisdictional issues Timing of claim – statutes of limitationsTiming of claim – statutes of limitations Strength of potential claimsStrength of potential claims Quantifying damagesQuantifying damages
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Implementation: Implementation: Executing the Plan and Executing the Plan and
Achieving ResultsAchieving Results
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
A note on removal of online A note on removal of online content versus driving down or otherwise content versus driving down or otherwise managing content managing content
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
Removal approaches generally fall into Removal approaches generally fall into one or more of the following categories:one or more of the following categories:• Reach out to the online attacker – either Reach out to the online attacker – either
amicably or by way of a cease and desist letteramicably or by way of a cease and desist letter• Reach out to the website Reach out to the website • Pursue a judicial remedyPursue a judicial remedy
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
””You can catch more flies You can catch more flies with honey than vinegar.” with honey than vinegar.”
Reaching out to the online attackerReaching out to the online attacker Clients often know or have a strong suspicion as to Clients often know or have a strong suspicion as to
who the online attacker iswho the online attacker is If there is a chance to amicably communicate with If there is a chance to amicably communicate with
the attacker, client or counsel can do sothe attacker, client or counsel can do so Goals are to try to understand attacker, find a way to Goals are to try to understand attacker, find a way to
resolve attacker’s complaint, and to ask attacker to resolve attacker’s complaint, and to ask attacker to remove damaging online contentremove damaging online content
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
When you are not catching any flies with honey…When you are not catching any flies with honey… Sending the Cease and Desist LetterSending the Cease and Desist Letter
If amicable solution is not possible, then client or If amicable solution is not possible, then client or counsel can send a Cease and Desist lettercounsel can send a Cease and Desist letter
Always remember the Hippocratic Oath of Online Always remember the Hippocratic Oath of Online Attacks – First Do No HarmAttacks – First Do No Harm
Be prepared to have the Cease and Desist letter Be prepared to have the Cease and Desist letter posted for all to see – understand that there is more posted for all to see – understand that there is more than one target audiencethan one target audience
The major approaches to Cease and Desist lettersThe major approaches to Cease and Desist letters
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
Reaching out to the website Reaching out to the website • Understanding the lay of the land – Understanding the lay of the land –
the uphill battle in the world of the the uphill battle in the world of the Communications Decency Act Communications Decency Act
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
Section 230 of the Communications Decency Act (“CDA”) is a groundbreaking piece of Internet legislation in the United States, codified at 47 U.S.C. § 230. Section 230(c)(1)
CDA provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others
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The CDA provides that no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider
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When analyzing the availability of the immunity offered under the CDA, Courts very often apply a three-part test. All three must be met to obtain immunity.• The defendant must be a provider of an "interactive computer
service."• The cause of action asserted by the plaintiff must treat the
defendant as the "publisher or speaker" of the harmful information at issue.
• The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
The Good News About Communications The Good News About Communications Decency Act Immunity… Decency Act Immunity… • Can be used as both a sword and a shield by Can be used as both a sword and a shield by
providers of interactive computer services providers of interactive computer services because the statutory immunity applies because the statutory immunity applies whether content is left online or taken downwhether content is left online or taken down
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
Reaching out to the website Reaching out to the website • Know the website that you are approachingKnow the website that you are approaching• Review Terms of Service for the websiteReview Terms of Service for the website• Prepare a credible and persuasive explanation Prepare a credible and persuasive explanation
as to why the content must be taken downas to why the content must be taken down
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
Reaching out to the website (Reaching out to the website (continuedcontinued))• Identify the right person and try to speak with Identify the right person and try to speak with
him or her by phonehim or her by phone• Put in writing to website only after trying to Put in writing to website only after trying to
contact by phonecontact by phone• Rely upon not only Terms of Use but also Rely upon not only Terms of Use but also
common sense and emotional appealscommon sense and emotional appeals• If complete removal by the website is not going If complete removal by the website is not going
to occur, try to pursue other optionsto occur, try to pursue other options
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
Going to Court – pursuing a judicial remedy Going to Court – pursuing a judicial remedy • Commence a lawsuit against online attacker Commence a lawsuit against online attacker
(not the website) for defamation, business tort, (not the website) for defamation, business tort, and other possible claimsand other possible claims
• Obtain an order or judgment from Court finding Obtain an order or judgment from Court finding that online content is defamatory or otherwise that online content is defamatory or otherwise illegalillegal
• Bring court order / judgment to websites and / Bring court order / judgment to websites and / or to search engines asking that they take down or to search engines asking that they take down offending content or links theretooffending content or links thereto
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Implementation: Executing Implementation: Executing the Plan and Achieving Resultsthe Plan and Achieving Results
Going to Court – pursuing a judicial Going to Court – pursuing a judicial remedy (remedy (continuedcontinued))• In those cases when client cannot identify the In those cases when client cannot identify the
online attacker, commence legal proceedings online attacker, commence legal proceedings in order to serve a subpoena on websites, and in order to serve a subpoena on websites, and possibly also on internet service providers, to possibly also on internet service providers, to obtain identity of online attackerobtain identity of online attacker
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Case StudiesCase Studies
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Case StudiesCase Studies
Online Attacks of New Jersey Online Attacks of New Jersey Medical GroupMedical Group
Difficult and aggressive patient, multiple posts on Difficult and aggressive patient, multiple posts on numerous websites, successful handling of matter numerous websites, successful handling of matter through website contacts alonethrough website contacts alone
Multiple Online Attacks on Surgeons in Multiple Online Attacks on Surgeons in New York Medical PracticeNew York Medical Practice
Approached the patient first, then websites, then Approached the patient first, then websites, then turned to legal proceedings against patient, including turned to legal proceedings against patient, including engaging cyber investigation services firm, that engaging cyber investigation services firm, that resulted in resolutionresulted in resolution
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Q & A SessionQ & A Session
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Document Number © 2015 GARFUNKEL WILD, P.C.
Thank you for attending Protecting Online Reputations: Surviving
and Prospering in the Online World
presented bypresented by
Kevin G. DonoghueKevin G. DonoghueGarfunkel, Wild P.C.
[email protected](516) 393-2535