Being Legal Online with Richard Chapo

This is Law and Wit, Episode 25: Being Legal Online with Richard Chapo. Welcome to Law and Wit, Creative Counsel for Entrepreneurs. I'm your host, Brittany Rettell, mother of 4, entrepreneur, naptime lawyer, and attorney for creative entrepreneurs. I'm here to share inspiration and action so that you can tackle your business blocks and confidently own your business in every sense of the word. Thank you so much for being here. Hey there, listeners, and thanks so much for being back. I wanted to preface today's episode and just, just kind of let you know what we're going to be talking about. It's a little on the legal dense side, but I totally believe in you that you can handle it. Your ancestors did hard things. You can do hard things. Okay. And the reason why I wanted to share and why I was so excited to have my guest Richard Chapo on today is that he has a tremendous amount of experience in internet legal businesses. He's been doing this for more than 25 years. His specialty is in people who are making money online, you know, content creators, major businesses. And we talked a little bit after the episode, and without name-dropping, you know, I don't want to, you know, breach his client confidentiality, but he's got some really major clients, you know, who are making multi-million dollars with their online businesses. So he knows what he's talking about. And it was really great to kind of dive in with him and get some perspective on what's happening with the online legal landscape. How are things changing? How are they evolving? And how can we make sure that we're poised to be on top of that and to be managing our businesses and to just be online in a really smart way so that we are creating value, um, and we're solving people's problems online and not creating new problems and headaches for ourselves when we can avoid it. So without further ado, let's get into the conversation. So welcome, Richard.

Well, thank you for having me on.

Thank you. Um, well, you know, give us kind of a quick, uh, Reader's Digest version of how you kind of came to do what you do now. I know you've done different stuff in the course of being an attorney and help being kind of a digital expert helping online businesses. But kind of take us a little bit through that, that journey and where you got to be what you're doing today.

Sure. I've been practicing for about 25 years now. When I first started out, I'm based in San Diego, I was doing litigation with a certified litigation specialist. We did wrongful death cases primarily, some bad faith insurance, but mostly wrongful death defending physicians and hospitals, for instance, when a patient passed away and there were questions of whether malpractice had occurred. And as you can imagine, that got a little old after a while.

A little dead, you know, not to beat to death the puns there, but yeah, it's certainly— it could be a narrow niche for sure. Yeah, a little stale.

Yes, some small emotions involved. And so around 1999, I took a year off, went sabbatical to Russia, came back, and I had a peer who had left the same practice and had become the CEO of an internet company, which was amazing to me because I wasn't all that familiar with the internet at the time. But one thing led to another. He needed legal work. And couldn't find an attorney and so I ended up doing it and realizing that it was a field where at that point in time, it was really the foundational level of law. There were so many open questions. Almost nothing was decided although you had acts like the DMCA from 1998 and the Consumer Decency Act in 1998. You didn't get into a lot of case law or anything of that sort. So it was interesting. It was an area to really break new law and see new developments. And I've been doing it ever since. Took a couple breaks to do some traveling, but more or less pretty constant since then.

Awesome. So, so you've seen, I mean, just the incredible change in the industry from, you know, the birth of the internet and it being the complete wild, wild west. We weren't sure what was going on or what the role of certainly the, the birth of the internet legal atmosphere to what we have today. You know, what are just some macro trends or things that you've, you've been able to see from kind of your bird's eye view?

Well, I think that anybody that was looking back then, obviously, as you pointed out, it was kind of the wild, wild west. There really weren't any guidelines. I mean, there were basic things like, were links legal, that kind of a thing. And we moved to a period where we started getting more sophisticated judges, appellate courts, and what have you, and decisions that made quite a bit more sense. And now we're kind of in a period where I'm a little worried about where we're headed as a commercial medium. The idea of this World Wide Web and this uninterrupted flow of information is under attack in my view. And I think that a lot of people are just kind of impervious to what's happening, and it's unfortunate because I think that we're almost seeing— I like to joke that it's World War III going on right now digitally, but a lot of it's based on privacy law and issues of this sort, which admittedly are not always the most exciting things. But we're seeing the empire strike back is one way I like to put it. The views in certain areas of the world are much different. Than, for instance, in the United States. United States, we favor free speech. China, they don't, right? You know, in these different countries. So how do you mesh all of these things together? And what we're seeing is the answer for a lot of countries and some, you know, the European Union is you don't.

Yeah, exactly.

So we're starting to see, you know, this trend of the internet becoming something that's fractured and isn't really what most people thought it would be. Not so much from— you know, a societal standpoint, but certainly from a commercial standpoint. And that's, I think, very worrying.

Yeah, yeah. Something that we all, you know, need to at least be aware of, even those that may seem like, oh, you know, I'm just a— if, you know, I think some, some of my listeners might, you know, feel more akin that I'm a small-time operator, you know, I'm just running a simple e-commerce site, or I do content creation online, or I'm a blogger and that's how I make my money. You know, what does this have to do? With my business? You know, and I think the answer is that we all need to care about, you know, privacy law. And certainly with this year and the GDPR coming out and how that's affected us even on this side of the Atlantic, we know that the nature of the way that we're seeing privacy regulation and how that affects everything from service providers and the way that we process and move data to the way we run, you know, all the services that we need to keep our website going, that these are things that we care about. You know, do you see anything else, you know, other reasons or things that you find yourself repeating often as to why even smaller operators need to care about this stuff?

I think it's just the pervasiveness of the difference of views. I think that, you know, people don't really understand how different societal views are in certain areas. And I mean, when you think about the European Union, you know, we're talking United Kingdom, well, for a while, Germany, France, you know, these kinds of countries. And you think, well, their views aren't really that different. But let me give you an example of how different they truly are. You know, here in the United States, I have family all over the country. Country, uh, everybody has kids, kid has a birthday party, they go onto Facebook and they post pictures of the birthday party. If you do that in France, that's a misdemeanor and you can go to jail for up to a year and you can be fined 5,000 francs. Now, are they putting people in jail? No. But, but the reasoning is you're violating the privacy rights of those kids, right? And that's a mentality in the U.S. we would never have.

No, I mean, that's, that's crazy. I mean, you know, I think you saw, and you know, there was a while where it was, I think, a little bit more common to see people be concerned about privacy. You know, some people say they don't do direct shots, you know, their kids' faces, or they would cover them up or something. Or, you know, a lot of people were private, had private accounts, and were concerned about that privacy online. But I think a lot of those concerns have kind of passed away as people— as it's become so much a part of our life and now so much a part of people's business. You know, if you're running a lifestyle brand, then that's, you know, targeting babies and children, then your kids are going to have to be in the pictures. There's no way around it. Um, that's crazy to hear that there's such a different view in France. About something as simple as just a birthday party picture.

Yeah, no, it is, you know, and I think that, you know, what the problem is that we're seeing, you know, this variation in philosophy about who should be the governing body, who should— how should you deal with these issues. You know, the EU with copyright law, they're talking about copyright reform now, and they want to have things like link taxes so that if you were to link to a newspaper article or some kind of a verified journalistic piece online in Europe, you have to pay a tax. Wow. That's your social media, that is your blog post, that's whatever. Now, you know, I can't even wrap my head about how they would even govern that, but just the concept of doing something like that, you know, and, and there's a logic behind it, which is, you know, journalism performs a very necessary task in society.

Yeah, it's supposed to be, you know, the fourth estate. Yeah.

So, right, so, and, and we see newspapers having so many problems, right? So, you know, how do you address that? So they're going at, you know, a real problem. It's just, you know, that's their mentality as to how to address it. And in the United States, the idea of doing that is, it's just madness. The problem, the biggest problem, you know, I can rant about Europe all the time. The biggest problem that you see in some areas in the European Union is famous for this. They do not differentiate between somebody who's running a blog on how to grow tomatoes and Facebook. Yeah. You know, and if you look at the GDPR and we can get into GDPR. Yeah. The requirements are all the same except for record keeping under Article 30. If you have less than 250 employees, you don't necessarily have to keep records. The problem is if anybody actually investigated you, you need records to defend the audit.

Exactly. So you're not— you're not— it's not— it's not really letting you off the hook.

Yeah. Right. Right. Now, I mean, obviously, now, are they going to invest it, you know, investigate tomato Hobbyist, probably not. You're probably safe. But it is just a different mentality. And I think one of the big struggles you're seeing now is how do you deal with these things? I have clients in Asia, in Singapore and Japan, and, you know, you look at China and you're trying to get into these markets and it is just chaos. Um, because, you know, you'll have rules. China just suddenly decided we're no longer allowing anonymity. Yeah. Okay, well, if you're in Hong Kong or if you're in Taiwan, that's a big issue, right? And so, you know, how do you deal with those types of things? Uh, you know, the fortunate thing for probably a lot of people listening to this is we're in the US, which is the biggest consumer market in the world, so we have a certain inherent insulation from these issues, but the thing is is these are spreading. California just passed the California Consumer Privacy Act, which goes into effect January 1st, 2020. It is essentially a GDPR lite. It has many of the facets of the GDPR, and if you're selling into California, and it doesn't matter if you're based in New York, Utah, or wherever.

Which, I mean, we all are. I mean, we're all selling to California, yeah.

Right, right. You know, and you meet certain thresholds, you know, then you're going to have to comply with that law. Now, the beauty of California— and let me explain, I'm in California, we have a legislature that's not the sharpest group of people. This is a group of people that passed a revenge porn law, and I think we can all agree revenge porn is bad. Revenge porn is when, you know, somebody posts pictures of their ex, right?

Not great, not something anyone's really going to hang their hat on that we need to defend.

Yeah, right. But they included an exemption in the law for selfies. And the problem is with revenge porn, about 90% of the images are selfies, are gonna have yourself included in it.

So yeah, it doesn't— yeah, it doesn't really come down to really thinking coherent legislation all the way through.

Yeah, right. So this is not the smartest group. But even then, when they, when they came in, they did the GDPR Lite, and it was done under all kinds of questionable political practice and, uh, pressures. But even when they did that, they created a threshold where you have to have, you know, 50,000 visitors a month or a year. And, you know, there are all these different things. They're still kind of rewriting the law as we go, right? But at least, at least they created a threshold so you can say to somebody who's just starting out, you know, hey, you don't really need to worry about this until you grow.

Yeah, you're not going to have to worry about a data manager just yet, you know, but it all— it is something that we're all going to need to start keeping on our radar, right?

Whereas if you're in other countries, I mean, you know, not to keep bagging on the EU, but if you think of, you know, the largest internet companies in the world, how many of them are based in the EU? The answer is none.

None. Yeah, I mean, I, I get, I get some junk phone calls from PayPal in Ireland, you know, selling me that they can give me a line of credit, but I mean, they're not even based there. That's just one arm of their data, you know, their data storage that they do there.

So, right. And plus Ireland, you know, bent over backwards too.

Exactly. They said take it all, take all the potatoes, take all the lamb, whatever you want PayPal, please, please come here.

Yeah, the joke was the supervisory authority in Ireland, you know, held meetings in a pub somewhere. You know, there's the three of them that were policing privacy law there, but unfortunately it looks like that's changing.

So I'm sure, I'm sure there was some Guinness was involved. Yeah, with that, that had that entire showdown. So, I mean, just, yeah, fascinating the development of California. And I mean, not surprising because, you know, I, and I've had some soft railings against California in the past, even here, because California is famous for making up their own laws. I mean, they like being able to really see themselves on the forefront of legislative, you know, changes and being early adopters of new trends and kind of having, you know, the laboratory of democracy. They definitely embrace that wholeheartedly. And so I don't think it's a surprise to us that that's what we're seeing, tech changes. But it also is going to be really interesting to see how that plays out, because as we know, most of our tech giants have, you know, a significant presence in Silicon Valley.

Right. And the California privacy law, I mean, it shouldn't be viewed as anything other than a huckster move. You know, in California, we have ballot initiatives, which means that anybody can go out and if you can get enough signatures, you can put something on the ballot. And in this case, it was a very wealthy real estate investor and developer and two other people went out and got basically a ballot initiative, got signatures and what have you. And the privacy initiative that they were going to put forward was polling really well, really strongly, so it was pretty obvious it was going to pass. But if you actually read it, it violated all these different laws. It was just going to be chaos. Nobody would be able to conform to it when it passed. And so they agreed that if the California legislature and governor went ahead and issued a law, um, basically incorporating it all, you know, before a particular date in June, um, you know, that they would pull the initiative, which is what happened. So where is it? Where's the GDPR? Took between 6 and 4 years, depending on how you look at it, to negotiate. The California privacy law was put together in 6 days.

Not ideal.

No. Yes, and listeners might not, might not grasp what that means, but to lawyers, to the two of us, that means that it's written incredibly poorly, right? Um, you know, not, not necessarily because they were incompetent, it's just you can't write a 10,000-word law in 6 days. It's just not going to happen. And so what we're seeing in California right now is people are freaking out, but I don't really think they should because, you know, there are bills being introduced to amend it. And as you point out, Silicon Valley has a bit of sway here.

Right. And they've got, you know, some seats at the table there. And so I imagine that they will have some very strong opinions about the way that it should come down in terms of its enforcement mechanism and everything else. Yeah. To make sure that it's not overreaching.

Yeah, exactly. You know, they're going to gut parts of it, to be quite honest. And, you know, they've already moved to pretty much limit the, you know, personal right of action. There's still an exception for it, but mostly it's going to be enforced by the attorney general in California, who again typically is politically motivated. So it's not necessarily a great thing, but the attorney general is limited by funds, to be quite honest. Right. And so, you know, the tendency is going to be probably to look at larger companies, you know, and try and enforce it in that area. Whereas with the GDPR, the scare tactics, you could be hit with a fine for $20 million. Well, yeah, if you're Google.

Right, and if you're Google, then you have a bevy of attorneys to help you with that, so I'm not too worried, yeah.

Right, exactly. Smaller sites, you're probably looking more at worst case scenario, the 4% figure that they'll throw around. However, they do go after small sites. It depends. The thing with the EU that's so interesting is it depends on the member state. The ICO in the UK is really somebody, if you're going to have a problem you kind of want to have it with them because they will hunt you, but they won't find you and they'll work with you. I mean, that's been their history. Now, even in worst-case scenarios, and I almost had a client that was just spamming, not paying attention to any of the law, breaking every law possible over there, and they got hit. But even then, the fine, I was kind of shocked that the fine wasn't more. I didn't end up representing them, but it was a situation where it was like, "Oh boy, Google alert their name. This should be good."— and the fine wasn't too bad. However, if you get hit by, say, Germany, you know, Germany issued 175 audit notices for the GDPR before it was even enacted. Wow. And France, you know, those are areas you want to avoid.

Yeah, obviously we know that— we know the French is failing on birthday party privacy, so don't cross them. Yeah, right.

And they're already issuing warnings to apps and groups at that point. Pretty much the only country that's really doing it right now, to be honest.

Yeah, it was actually kind of of using the full force of that. So, um, so I mean, what's something as a, as a US-based business owner, if someone thinks, well, you know, I, I have a privacy policy, I think, I'm not quite sure, you know, if it's, if it's good enough or if I've really done enough, um, you know, what do you, what, where do you start when you talk to your clients in terms of making sure their ducks are in a row?

You know, I think it's basically profiling their businesses, uh, getting an idea of, you know, the territory scope provisions for the GDPR and things of that sort. Um, you know, you'll see stuff written online all the time about, you know, if collect one email, you have to comply with the GDPR. I don't really believe that. I believe if you read the recitals and what have you, that's not the case. You look at Brussels regulation, you look at the case law that's under that, and it's based on almost the exact language that appears in the GDPR. You know, there's a sliding scale of factors to look at. There's a risk factor there that obviously you have to weigh. But to go through that analysis with a client— I mean, you know, if you, if you're a mortgage broker and you're in San Diego and you, you know, sell mortgages to people in California, you really don't have to worry about the GDPR. Obviously, if you're selling soccer jerseys to a crowd in the UK, then obviously you have issues that you have to address. So that's kind of the initial analysis. With the new California Act coming up, that'll be the secondary issues. How do you deal with those issues or with that legislation? It's just kind of evolving. Unfortunately, the days of going out and just slapping a privacy policy, that's probably over. You're gonna have to talk to an attorney, and obviously, if you're in California, I'd love to talk to you, but You know, in your own state, you're going to have to find somebody and sit down and talk to them, show them what you're doing, and then, you know, go through the kind of the privacy analysis. And, you know, it's probably going to spread. Other states are going to pass similar legislation, I would think. And it's, you know, we're just going to have to wade through it. And well, more importantly, the courts are going to have to wade through it. One of the things that is important to remember, I think, with regulatory fines is typically liability insurance does not cover them. Yeah, so this is not something you should be sticking your head in the sand on, because fines, you know, even if you're not fined, your attorney fees, yeah, to defend one of these actions, you know, they can accumulate quickly. So even if you're small, you know, it makes sense to kind of get your ducks in order and at least know what you're doing. I tend to think that if you can show good faith effort to comply, you know, a lot of these agencies are, are not going to be that interested in you. And they're really only going to be interested in you if they get complaints, right? Unless you're bigger, you know. But unfortunately, you know, there are a lot of privacy warriors out there, and both in the EU and in the US. And, you know, I've had problems with some of my smaller clients where I've, you know— and as an attorney, I'm sure you would have the same reaction, which was, oh, come on, really?

These guys? Come on.

Yeah, really, exactly. You know, Facebook is doing all this stuff and you're You're gonna come after my client, really? But unfortunately, that's the legal right that people have, and you're gonna have to address it. And you also have to keep an eye out just kind of on developments. You really wanna team up with an attorney because there's some strange developments. Are you familiar with the Facebook ruling on the fan groups?

[Speaker:ANDI] I've seen, I think I heard the headline, but I don't think I read the full story on it.

So yeah, fill us in. So the European courts decided that when you form a fan group, you are essentially a joint controller with Facebook and that you must take technological steps to gain consent before allowing people to join the Facebook group because you're gathering information on them. Nobody seems to have pointed out to the court, really? Okay, so I join my, or I create my fan group page for Justin Bieber and then I send a message to Facebook saying, hey, how are we doing? "Where are we going to put together a consent mechanism? Now, how long do you think I'm going to have to wait for that response?" Exactly, yeah. You know, it's just ludicrous. So, unfortunately, you know, you really do need to sit down probably and form a relationship with an attorney who's, you know, familiar with these issues and, you know, is watching what's going on. And there's just going to be risk analysis, just like anything else, you know, in your business, particularly from a legal perspective. There's going to be some comfort level you're going to have to come to, you know, with some areas that maybe you need to be more aggressive in, other areas, you know, it's just kind of roll your eyes and hope that that small percentage of a potential problem occurring doesn't happen.

Yeah, just kind of let those things go and understand that that is something that's going to be ongoing as things unfold, as Richard talked about, especially as we see the California, the GDPR lite as it may be termed, rolling out and see how that affects waves of legislation that probably will affect all across across the US, regrettably. Yeah, or not. I mean, you know, it means that people are going to keep calling you, but, you know, sometimes we wish that wasn't the case, that maybe, maybe we should go into something that was less, uh, you know, depressing for our clients to have to be waiting through all this stuff.

Yeah, well, I, you know, I think from my perspective, at least having done it for too long, um, you know, from the 1990s, late 1990s, is, you know, you really had this medium where you did have the free flow of information and you, you had this you know, Arab Spring and all these different things. And, you know, it was kind of a beautiful form, and you're seeing it break down now into these regulatory areas where, you know, it's really no different than brick-and-mortar businesses. You know, you have the ADA question, you know, the Americans with Disabilities Act, does it apply to websites or not? Do you have a physical location? You know, all the— all these things that are just, um, you know, it's a bit much.

Yeah, it's a bit much. And then, you know, throw in, you know, some net neutrality on top of You know, and yeah, it's, it's, it's crazy how much the internet could change as much as we think that it is, you know, something that's bigger than all of us. But yet it's still controlled by humans. So, yeah, we can certainly affect it for good or for bad.

Yeah. You know, and to see certain, you know, it's frustrating. I used to represent quite a few companies that, that marketed and worked with target audiences that were under 13 children in the US. And there's federal law, the Children's Online Privacy Protection Act. You have to comply with. Yeah. Okay, well, it's expensive to do it. Yes, not only is it expensive— not only is it expensive to do it, but you lose a lot of potential revenue channels. And I would tell my clients dutifully as an attorney that they had to comply with the law, and here were all the steps, and they would spend the money and do everything else. And then the FTC, who's charged with essentially enforcing it, would do nothing, right? And all their competitors are completely non-compliant, making money. And, you know, the FTC enforces 2 cases a almost verbatim, and they're two, you know, sample cases, right? So, you know, cases that are going to get big publicity, and it's usually nothing nefarious. It's just, you know, Yelp got hit once because their age filter was broken, right? Uh, you know, and you're sitting there trying to talk to your clients.

Well, you know, what do you want to do? I, I, I still think it's a good idea, but you're right, it all kind of seems a little ridiculous because of the actual— yeah, the actual chance that you're going to get dinged by it. It. So, um, yeah. And yet, who wants to be the bad actor who's, you know, you know, ripping off kids and telling them, put in your email addresses? I mean, no one wants to be that guy.

But yeah, well, I think, you know, I don't know, maybe it's just me, but in looking at it, I think there should be thresholds on the internet in relation to the size of businesses. Yeah. And I think that, you know, we should stop this, this idea that, you know, um, you know, particular regulations should apply across all businesses. Because if, if you're If you're an antique store and you have 1,500 people on your email list, they're probably really interested in the antiques you're selling. Do you really need consent? What if consent decay? My favorite thing with the GDPR, one of the favorite conversations I had with supervisory authority was they told me, "Well, consent decays over time." And I said, "Really? So when somebody signs up for my client's email list, they check the box, they go through all the disclosures, you're telling me that decays over time?" Yes. Okay, how long? An appropriate amount of time. Well, what the hell is that?

Well, what does that mean? I mean, like, you know, let's hit it CSI style. We put it out on the table. How long is it going to take? You just assume that people's tastes change over time? I mean, how paternalistic is that to assume that a person doesn't have the wherewithal to unsubscribe if they're not interested? Thank you.

Thank you. We work off of the presumption that people are idiots.

Yeah, I mean, how hard is it? It's at the bottom of every email. I mean, I've taught my grandma to do it. They done, they can do it now. So we're all good, we're all good.

It's 2018, okay? Thank you. It's so nice to talk to somebody that looks at it the same way. It's just, you know, because I'm just like, what? You know, I mean, these people, the presumption is that the audience, the target audience that you're dealing with on the internet, barely has the capacity to breathe on their own, right? And it's literally like, really? You know, what we're doing essentially in the EU and what you're seeing, you're already seeing backlash in the EU. People are saying, why are all these pop-ups? Yeah. Why am I getting all these warnings?

Essentially, they're the warning on the mattress. Yeah, that's exactly what it is. And which people always blame attorneys for, but you know, it's not always attorneys. It's, it's, you know, stupid litigants who say, hey, I think we can make some money. You know, it takes, it takes more than just one person to tango and to write bad laws like that.

So no, no. Yeah, exactly. Exactly. So who knows? I mean, there's, you know, there's two sides to every story, but it certainly is frustrating at times.

Yeah, for sure. So, I mean, that's, and that's the real, you know, the scariness about the splinternet, you know, as you, as we were talking in email about, about this concept. And it's a term that I have heard, but, but not one that I've really explored a lot. But it is something that I hope that doesn't— we don't see that it's a trend that comes to pass, which is we have, you know, little island nations of internet split up because of rules about things like privacy or things about hate speech or free speech or, you know, being able to rewrite history. I mean, you know, how awful is it to know that in China, you know, we have all of these sites that are blocked that poor Chinese citizens don't have access to?

Sure. No, absolutely. And, you know, for people listening, the splinternet is just a concept that's been floating around for a while that was kind of theoretical and now has become much, much more actualized and basically it says that the internet is divided into different regions based on either economic or geopolitical reasons. And you're seeing it, the GDPR is kind of an example. As many people know, when the GDPR went into effect on May 25th, 2018, quite a few US newspapers blocked the EU traffic. Something like 1,100 papers because primarily they do a lot of cookie advertising and it would just kill their advertising. Dick's Sporting Goods, well-known sports retailer, blocked. And I present that to my clients all the time. I say, you know, do you want to block this or not?

How many sales do you actually have? It's— yeah, it's an option. I mean, it, you know, cost-effective, you know, benefit analysis. It might be cheaper just to say, sorry, you forget, you, uh, best of luck, uh, and you can buy from your French birthday party stores. But I, I, you know, I don't have the resources in order— I think it's prudent to invest that in order to comply with these kinds of regulations. No, absolutely.

And I think the key thing to that is, you know, a lot of people and a lot of my clients immediately said, no, I have to be in the EU. And I said, well, what are your sales? Yeah, you know, and then they start looking at their sales and, you know, 2% of their sales come from the EU.

And it's like, well, do you really have to be in the EU, or do you just like the idea of being in the EU? Yeah, right.

You know, because I'll tell them, you know, you want to be there, that's fine, but, you know, I'm telling you the bills you're going to get from me, and that you're going to have to hire a programmer to do this and this. And, you know, and then suddenly, you know, they're not so excited. And you're seeing it in other areas. I mean, obvious areas— Russia, LinkedIn. You can't view LinkedIn in Russia because Russia has said essentially that if you collect information from any of their citizens, you have to maintain a server within their jurisdiction, within their country, that contains all that information on that citizen. And you can play the ominous music behind that, right? What that looks like, right? Right.

You know, and good for LinkedIn for saying no. No, right?

Well, yeah, the irony is LinkedIn said no. Google and Yahoo of course rolled over immediately and said, where do we sign?

Yeah, exactly. Yeah, that is that. To their shame. Because yeah, they, they have definitely bowed down all over the place where they've needed to. And yeah, I mean, that's hard because then the bad actors and people get rewarded for, you know, bad behavior.

No, it's true. You know, and then you get into the issues of, you know, they're more esoteric and perhaps maybe a little boring to the audience, but would probably be a surprise. ICANN. ICANN controls the domains and some infrastructure of the internet. Well, most people don't realize ICANN was originally a— I wouldn't say subsidiary, affiliated, let's put it that way, with the U.S. Department of Energy. That's where they originated, and they were an independent company. They are an independent company, nonprofit out in California, but they were controlled and funded through the Department of Energy, through a secondary subsidiary. Well, 2 years ago, the question was, does the U.S. keep that kind of subtle control of ICANN, or does it, you know, throw it out into the public and let different nations control it?, and the ultimate decision was, well, we'll put it out into the public, different nations can control it. Well, you know, everything we've been talking about here, uh, you know, what is free speech in the U.S.? You know, we create— it's an incredibly important constitutional right, right? On other countries, it's not. Yeah. And so, you know, what does that do to ICANN? And you see ICANN struggling in the EU right now with the GDPR, you know, because the EU is saying Hey, you can't show the WHOIS table because that's violating the privacy rights of these people. And the reason that's important is if you're in copyright infringement or trademark infringement, the WHOIS database is kind of where you start to try to hunt down the people who are stealing your content.

Yeah, if you don't have access to that, then people can hide behind a shield and they can, you know, they can scrape and post all day long and they'll say nana nana boo boo and you can't find them.

So yeah, and the courts in the EU have upheld that. And if they continue to do so, You know, it's a holy day, a glorious day for, yeah, scrapers and scammers because they can hide behind that. And it's, you know, and so, and that's because in the EU, privacy is considered essentially, you know, as important as free speech, right? It carries, carries that kind of a weight. Whereas here in the US, you have to be honest, in the US, despite all the things we say about freedom, privacy in the US is kind of a joke, uh, you know, I mean, it is. We don't even have a, you know, federal law that deals with privacy in No, I mean, we have specific niches, um, and, and that's fine. I'm not criticizing it, it's just a different mentality. And so how do you deal with these, you know, international structures, these international organizations that are going to be kind of key to going forward? You know, net neutrality, we talk about and scream about it here, but in other countries they don't have it, and you know, you're charged for everything, right? And it's, you know, it's kind of a downer. But in the U.S., you know, we're very entrepreneurial in nature, but you know, there's a cost to that. And if you are dissuading people and you're raising that cost by making it, you know, a bigger burden to get into a particular business niche, well, you know, does that really benefit what we're trying to do?

Right. Yeah. And then we get the, you know, the super weird circumstances like the— did you see the story of the firefighters who were trying to— they were trying to max out their data because they were using obviously their GPS applications who were fighting fires, and they got notices saying, sorry, you know, you went over your data, you're going to need to go and call your supervisor. I mean, this is during an active fire, and they got throttled. They got throttled by their provider. You can imagine the public backlash. I forget who the provider was. I think it was Verizon. I mean, I don't want to throw Verizon under the bus if it wasn't them, but, um, but I'm pretty sure it was. But I'm like, okay, come on. I mean, don't you think that someone should have stepped up and been like, now is not the time. Now is not the time. Okay, you let first responders have— and you have to have the express lane. Okay.

Yeah, well, but you know, it's going to happen more and often, and where it's going to happen probably is in, you know, data exchanges and emergency medical procedures. Yeah, some of those pipes— I know that they've had problems with hospitals where suddenly everything goes, you know, right in the middle of open heart surgery.

And that's, that's exciting. Um, so yeah, just when we thought we were doing so well with the self-driving cars and the robotic surgery, and then, and then, you know, we We get taken aback and now everyone goes full Terminator scary.

Yeah, so yeah. Well, it is, you know, it's an interesting environment. I mean, and you know, as attorneys, I think it's obviously particularly interesting to us, but you know, if you're listening and you're not an attorney, one of the things you have to understand is we're also in an era for entrepreneurialism and for business, not only just with small businesses, but with large businesses where you're seeing acts that have never really occurred before in economy. So for instance, Elon Musk, you know, they have all these patents for batteries and for the electric car and everything. And he's just opened it up to people, right, and said, go ahead and use these. Yeah. If we've gone back to the 1980s before the internet, you know, companies spent billions of dollars suing each other over protecting over that, you know.

Yeah. And he's just, you know, opening it up on a platter and say, hey, come, come, come and use them. I'd love to see this get developed. Yeah, right.

You know, and you talk about Instagram, you know, people developing their personal brand. I mean, that's There was a meme going around somewhere that was talking about the 1970s. I don't want to say that on the phone. Maybe the government's listening. And now you have people talking directly to Alexa and Alexa being used as a record for actions. I mean, they solved a murder through an Alexa recording. It's crazy. Yeah. The husband said somebody broke in and killed his wife and they played back Alexa and obviously he had actually done it. From a legal perspective, it's kind of shocking to see how open we've become with a lot of these things. But from a business perspective, it is, it's, you know, it's an amazing growth period.

Hopefully we don't, you know, we don't ruin it. No, no, hopefully, yeah, we don't, we don't stifle it too much, us and all of our, all of our friends. So yeah, definitely. Well, as we kind of wind down, you know, did you have— I mean, and we kind of talked about some of the things you can go, you know, specifically for kind of a privacy analysis for a business, but even on, you know, to step back a little bit, And, you know, as you start talking about people who are getting an online business, and maybe so, maybe it's someone that you, you know, say it's a first client and you don't have any conversations before. What are kind of some 4 tips that you like to give in terms of what they should be thinking about and protecting themselves kind of in the current environment with the, you know, caveat that things are changing all the time?

Sure. You know, I think the probably the biggest thing, I mean, there's the basic things, obviously, you know, you want legal documents on your side to try to protect you. You know, do you need to form business entity? You know, take a look at insurance. I think one of the biggest changes that I'm telling people not necessarily they must do, but they should think about is the American passive business model is kind of under attack. The idea that you offer something free in exchange for privacy data of a person that you can later use to drip market on them, the classic being, "I'll give you an ebook if you sign up for my email list." That kind of a strategy I think is going to be under threat. Not only do we have the GDPR, but the ePrivacy Directive.— well, it's going to be regulation now is coming out and Lord knows what that's going to do to email marketing in the EU. But if that also transfers over into the US through states like California, you can see that form of marketing under a lot of threat. So I think that if people should really be thinking about, well, how am I going to monetize this and maybe trying to think of new revenue channels and new directions to take their business because I think that that will help insulate against that. And then the other thing which is kind of a standard one most attorneys tell clients, you know, affiliate marketing is a great way to get started, but, you know, as soon as you can, develop your own products, right?

Branch out.

Yeah, don't put all your eggs in someone else's basket. Yeah, yeah, particularly with social media, because if you build up, you know, 100,000 followers on Instagram and then they close your account, um, well, you're not getting it back, which happens, you know.

And sometimes it's for cause and sometimes it's not. Sometimes stuff just, you know, people People make mistakes and, you know, good luck trying to get through to Instagram and explain that.

So. Sure. Yeah, particularly, particularly copyright. You know, the DMCA, a lot of people don't understand. If you receive a DMCA complaint, you need to respond to that because there's something called the repeat infringer policy. And that is under the DMCA. If you receive a certain number of complaints, it's usually a pretty low number, 2 to 3 in a couple of years, that provider has to close your account or they become jointly liable with you for copyright infringement. So you need to respond to those things. Just don't bury your head. And yeah, YouTube accounts. I've had some people call me with large YouTube accounts that have just disappeared.

So, so yeah, listen to that. All my clients who have a hard time taking, listening to my advice of not using copyrighted music, stop using copyrighted music. I know, I know it's hard because those are the songs we all want to listen to, but we cannot do it. It's just, it's not worth it.

It is not worth it. Absolutely. Particularly music. I mean, that's the number one area they enforce, right? Right. You know, and for people out there don't understand how serious the music industry is about it, whether rightly or wrongly, they spent 10 years and an obscene amount of money on a stupid baby dancing YouTube video over whether a 20-second sample of a Prince song constituted copyright infringement or not. Yeah. And they took it all the way to Supreme Court. 10 years.

And I can't even imagine the legal fees they spent over this. Just hundreds of thousands of dollars. Just all the money, just up, just, you know, all being burned down the drain, however you want to imagine it. But, um, so yeah, if you think that record companies aren't— are messing around or wouldn't waste your time, you're wrong. They absolutely would, because a lot of what they plan on is making a big splash like that and scaring people. That's what they started doing with file sharing. I mean, it was all about get— catch a couple people and, you know, scare them enough to make everyone else scatter.

So absolutely, absolutely. Yeah, take it seriously. Those groups, that's, you know, they have departments and funds, and that's all to do.

Yeah, so for sure. So, all right, well, um, you know, if people want to hear more about you and working with you, if they're in California, or if they just want more some of your gems of wisdom, you know, from someone who's really done a lot in this space, uh, where can they find you?

Sure, you can find me, uh, my website. I have a very old-school, uh, primitive website. It's socalinternetlawyer.com. I'm also on LinkedIn quite a bit. Uh, I'm not really on Twitter or Facebook because I end up wasting too much time. Um, you can also do a search for me on Google. It's just Richard Chapo, C-H-A-P-O. R-H-A-P-O. No, I'm not related to the Mexican drug lord.

So when you see FBI investigates Chapo, that's not me. You're well traveled, but you're not that well traveled, Richard, is what you're saying.

Yeah. Yes. Every once in a while I get tempted to go down to Tijuana and try and get free drinks, but, you know, the risk level is pretty high, I think.

I think you could get— that could go, you know, two ways.

You're gonna have a really good story, or you could end up dying in a Mexican prison. So, yes, yes. And knowing my luck, I have a pretty good idea which way that would go.

Would go down. Yeah, well, awesome. Well, thank you so much for joining us today. Hey, thank you for having me on. I really enjoyed it. Okay guys, thanks so much for joining me on this deep dive today about internet law, and I hope you came away with some new nuggets of things to think about, or even just a new frame of reference. You know, I think because we are in this space and so many of us are making our money online, and it's a big part of the way we do business and the way that that we provide content to other people and solve their problems and reach the people that we want to reach. It's just really good to be aware of what's going on in our legal landscape, and especially in what's coming down the pipeline in terms of as people are trying to decide what the internet's going to look like going forward and whether that's going to— what kind of regulatory environment that's going to be. So I think it behooves us all to just become better informed about that. And I know, I know it's not the most sexy part of running an online business, of being time is worrying or caring about this stuff. But I do think it's important. And so, you know, if we can hope to be just a small part of that, engaging in that conversation, and just having just a way to think about it and to frame it in a way that makes sense to the way that we're doing business, then I think that's, that's great for all of us. And we can be part of those better solutions to today's problem. So I want to remind you that if you have not left a rating for the show yet, yet, please, please do that as soon as you're done, even if you think that you'll do it another time. Um, even if you've sent me a DM or hearted something, you know, like to comment or engage someone else online, that's awesome, thank you so much. Um, but ratings really, really help people find this show and help this content get into the hands of people who need it, who are looking for it, who are trying to find ways to make their creative businesses more legit, and would love to know that this is a legit show that they can actually find, and that will give them some help and answers to their problems. So, and part of that definitely is from your ratings. So if you can write one, great. If you could just do stars, then give, give me some stars, please. Thank you, really appreciate it. Also want to remind you that if you're not signed up for my newsletter, please do that as well. That's at brittanyrotell.com/newsletter. B-R-I-T-T-A-N-Y. That's the right way to spell Brittany. Me. Sorry, not sorry for being, for being a little bit of a snob about that. Um, and ratelle.com, R-A-T-E-L-L-E.com/newsletter. Um, and when you sign up for my newsletter, you do get a total freebie. I'm not going to leave you empty-handed. So I send you a, my free legal checklist where you can go step by step and look at the, what are the big things that you need to be looking at to make sure that you are setting up your business and making it legit. Even if you've already been going for a while, all the more reason to take a look at that checklist, have a really good place to start asking questions, um, to any experts that you have or any experts that maybe you want to bring on to make sure that you're getting your business set up in a strong way and that it can grow the way that you want it to grow. So check that out, um, subscribe, like, comment, do all the things. Also check out the show notes for this episode So I'm trying to make those better and better all the time. And so you'll find the link in this podcast. You can also always find the link for each and every episode at brittanyratel.com/the number of the episode. So this is brittanyratel.com/25, episode 25. Thanks so much for being here. Really, really appreciate it and have a great week.