Boston’s Imagination at its Finest

City skyline detailed silhouette. Vector illustration

Imagine a Boston where public engagement is encouraged.  Imagine a Boston where a vision for the City is created and then guides expansion and development. This is exactly what Boston’s Mayor Martin Walsh has proposed with the launch of “Imagine Boston 2030.” Imagine Boston 2030 is the City’s first comprehensive planning initiative in 50 years.  It is aimed at fostering collaboration among all stakeholders in the development of transportation and housing, while promoting the arts, preserving the environment and growing the City’s economic base.  It promises to be a pioneering opportunity to create a progressive movement within the City.

Imagine Boston 2030 could have a tremendous impact on residents and developers alike. Currently, the process that developers undertake to receive permits for zoning is prolonged, unpredictable and cumbersome. With Mayor Walsh’s initiative, the Boston Redevelopment Authority (BRA) will have more latitude to assess the needs of developers and residents which should  expedite development in underserved and underutilized neighborhoods. The team facilitating this process hopes to put an emphasis on neighborhoods that have the potential to adjust well to transit-oriented expansion.  Special priority will be given to economically disadvantaged residents, non-English speaking individuals, and youth to voice their opinions and ideas in public assemblies.

Zoning within Boston is a huge matter of concern for developers. Neighborhoods that are in need of a facelift will greatly benefit from the proposal as developers will be eligible to receive permits by right to assist in the construction of modern buildings to promote business and economic growth. Much of the city’s current redevelopment plan has been placed in the Downtown Boston area with the rapid construction of Millennium Tower and new retail and business spaces within its radius. Imagine Boston 2030 will focus on areas that are in need of renewal such as Allston’s Beacon rail yards and Forest Hill’s Eggleston Corridor.

As part of the initial phase of the six-stage process, Mayor Walsh announced a Request for Proposals (RFP) which outlines an approach for consulting services to assist in what is the first citywide plan in fifty years.  The RFP seeks a team composed of a lead consultant partnered with public outreach and communications services.  An extensive background in public engagements, outreach, and planning of citywide projects is needed to qualify for a spot on Mayor Walsh’s team. All responses are due by July 20, 2015.

Bostonians are currently being asked to visit the plan’s website to fill out a survey to target specific areas of concern.  Although the final plan is not expected to be implemented until Summer, 2017, Mayor Walsh believes that this new level of engagement and collaboration between residents, developers, businesses and organizations will create a thriving and groundbreaking city that surpasses each milestone of real estate development, economic prosperity and social growth.

– Craig Tateronis

Craig Tateronis

If you have any questions about zoning, permitting, or any other real estate law matters, please contact Craig Tateronis, a Managing Partner of Prince Lobel Tye and the author of this alert, at 617 456 8021 or ctateronis@PrinceLobel.comor click here to contact any of the attorneys in the firm’s Real Estate Law practice group. 

FTC updates endorsement FAQs, focuses on social media

The Federal Trade Commission, the government agency in charge of protecting consumers from deceptive and false advertising, published a set of Endorsement and Testimonial Guides in 2009. These Guides help advertisers understand the best ways to follow the law of the use of endorsements in advertising, and the proper way to disclose endorsers’ connections to advertisers to the public (see the Federal Trade Commission Act, Section 5).

While the Guides provided a number of hypothetical examples of how the law should be applied, (you can read those here), those examples only reflected social media scenarios as they were likely to exist in early mainstream social media.

Last week, the FTC published an updated “What People Are Asking” FAQ-type page that complements the Guides and provides a number of 2015-relevant scenarios under which disclosures should be made, and what they should look like.

An endorsement is an advertising message made on behalf of a sponsoring advertiser.  The endorsement must be honest, and the endorser must have actually used the product or service that s/he is endorsing.  If the writer of an endorsement has received something of value – cash, free product, free service, entrance into a sweepstakes, etc. – for making that endorsement, s/he must disclose that fact to the public.

It’s a matter of consumer protection from advertiser deception.  Consumers should feel comfortable that the endorsement is based on the endorser’s actual experience with the product or service. Consumers also have the right to know whether the endorser received something of value in exchange for the endorsement in order to determine for themselves what weight and credibility to give to the endorsement.

If a “significant minority” of consumers don’t understand the “material connection” between the endorser and the advertiser, a disclosure is required.  “Significant minority” is a pretty low bar, so the FTC suggests that when in doubt, it is better to disclose.

If you are a blogger or other digital influencer who is publishing content sponsored by a brand on your blog, on YouTube, or through any of your social media handles, you are an endorser, and this applies to you.  If you are a company engaging the endorser, you are the advertiser, and are obligated to ensure that the endorser follows the Guides, so this applies to you, too.

And in case you were wondering why these requirements aren’t trumped by free speech rights, it is because endorsements are typically commercial speech, which can be lawfully regulated by the FTC.

The following is an overview of what’s new from the FTC on this topic, along with some points reiterated or clarified from the original Guides.  I encourage you to read the full “What People Are Asking” at ftc.gov.

When and where do you need to make a disclosure?

Here’s the simple rule again:  A disclosure is required when an endorsement is made on behalf of a sponsoring advertiser.  There is no special wording required by the FTC to effectively make this disclosure.  “This post is sponsored by Company MNOP” or “Company RST gave me this product to try” will suffice.  The latter comes directly from the FTC.

A blanket disclosure somewhere on your website, like “Sometimes I write about products I receive from brands” in an “About” page or under “FAQs” is not sufficient.  The disclosure must be “clear and conspicuous.” That means it must be near the endorsement, in prominent font, not buried in text. (You can learn more about making effective disclosures here).

If the endorser writes about the product or service more than once, s/he should make the disclosure each time, because the reader of a blog post about Product Q in June might not have read April’s post about Product Q that contained the disclosure.

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Medical Identity Theft

stock-photo-39788480-identity-theftMedical identity theft is on the increase. The Identity Theft Resource Center (ITRC) reports that as of March 30, 2015, there have been a total of 68 breaches involving 99,335,375 records reported in the medical/healthcare industry. See Identify Theft Resource Center 2015 Data Breach Stats, Report Date: 3/30/2015, pages 5-7, on their website. A “breach” is defined  to include an event in which an individual’s name plus Social Security Number, driver’s license number, medical record, or financial record (including credit/debit card) is potentially at risk either in electronic or paper format. Id. at page 2.

Medical identity theft usually occurs when a person’s name and part of the person’s identity, such as insurance information, are utilized by a criminal to acquire medical goods or services without the person’s consent. Typically, the criminal is uninsured but in need of medical goods and/or services. Medical identity theft frequently results in incorrect entries in the victim’s existing medical records, or it may result in the creation of a false medical record in the victim’s name.

Gary Cantrell, Deputy Inspector General of the Office of Inspector General (OIG) recently testified before the Subcommittee on Oversight of the House Ways and Means Committee regarding the OIG’s efforts to combat Medicare fraud. He stated that medical identity theft plays a key role in many of the Medicare health care fraud schemes investigated by the OIG. Often medical identity theft occurs with the use of recruiters or marketers. They entice Medicare beneficiaries to provide their identifying information including their Medicare numbers or Health Insurance Claim Numbers by promising them something of value in return such as money, services, equipment, prescriptions, or narcotics. Other times insiders may work in the health care profession which gives them access to beneficiaries’ personally identifiable information. These insiders acquire this information which they then sell to co-conspirators who have the ability to bill Medicare using the information.

In a sample survey of 49,266 respondents who were victims of identity theft in the United States, many reported a lack of confidence in their health care providers’ privacy and security measures to protect medical records. Seventy-nine percent of the respondents stated it is important for health care providers to ensure the privacy of their medical records; 48 percent stated they would consider changing health care providers if their medical records were lost or stolen; and 40 percent stated it is important for health care providers to provide prompt notification of a breach. Ponemon Institute, Fifth Annual Study on Medical Identity Theft, February 2015, pages 3 and 4.

What Steps Can Health Care Providers Take to Prevent or Mitigate Medical Identity Theft?

While health care providers may have implemented HIPAA policies and procedures to protect against the unauthorized use or disclosure of protected health information (which may result in identify theft), many health care providers may not have implemented a Red Flags Rule Program. Whether a health care provider is required to implement a Red Flags Rule Program depends on whether it falls within the definition of “creditor” under the Red Flags Rule. There are a series of questions, the answers to which determine whether a health care provider falls within the definition of a creditor.

Does the health care provider regularly:

Defer payment for goods and services or bill customers? or Grant or arrange credit? or Participate in the decision to extend, renew, or set the terms of credit?

If the answer to any of the above three questions is “yes”, then does it regularly or in the ordinary course of business:

Obtain or use consumer reports in connection with a credit transaction? or Give information to credit reporting companies in connection with a credit transaction? or Advance funds to or for someone who must repay them, either with funds or pledged property (excluding incidental expenses in connection with the services provided?

If the answer to one or more of the above three questions is “yes”, the health care provider is a creditor covered by the Red Flags Rule. Even it the answer is “no” implementing a Red Flags Rule Program can be beneficial. A Red Flags Rule Program will assist health care providers in identifying identity theft by looking for the “red flags” or patterns, practices, or activities that indicate the possible existence of identity theft. A Red Flags Rule Program will also assist providers in taking steps to prevent or mitigate identify theft.

-Rochelle

Zapol

If you have any questions concerning medical identity theft or the privacy and security of medical records or would like assistance in developing a Red Flags Rule Program, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Asya Calixto Answers NENPA’s Media Law Hotline “Question of the Week” on Storing Subscriber’s Information and Private Policy

Question: My paper is considering moving to a new system of storing subscriber information, and we think we should revise our privacy policy as part of this process. What should we be considering as we do so?

Answer: You should certainly update your privacy policy to reflect changes in how you collect, use, and store information about visitors to your website. The Federal Trade Commission’s latest enforcement actions serve as a reminder of the importance of being honest and transparent with your visitors. For example, the FTC reprimanded Snapchat for telling its users that messages sent through Snapchat would disappear forever several seconds after they were received, when in fact there were well-known and widely available methods for a recipient to capture and store the messages indefinitely. American Apparel also got into trouble for representing in its privacy policy that it was complying with a self-regulatory privacy program, when in fact its certification had lapsed. The lesson? Don’t make promises you can’t keep. Be realistic, and revisit your privacy policy to make sure that what you convey to visitors is consistent with your practices.

Click here to read Asya’s complete answer.

The Media Law Hotline is a service offered free of charge to NENPA members in good standing, and is staffed by the media and intellectual property lawyers at Prince Lobel Tye LLP. You can reach the NENPA Hotline at 1-888-428-7490 or by email at media@princelobel.com.

Asya Calixto

Officers’ arrest records and mugshots are fair game under Massachusetts law

Thanks to The Boston Globe’s Todd Wallack, we learned last week that the supervisor of records, charged with enforcing the Massachusetts public records law, has permitted police departments to withhold arrest reports and mug shots from the public in their “discretion.” Unsurprisingly, police departments have exercised that “discretion” to shield the identities of police officers arrested for drunken driving while publicizing the arrests of other Massachusetts residents for the same crime.

Yesterday, Secretary of State William Galvin took to Jim Braude’s “Greater Boston” show on WGBH-TV (Channel 2) to defend the rulings. He pointed out that he had previously ruled arrest reports to be public, but said he had to back down because another agency, the Department of Criminal Justice Information Systems (DCJIS), told him the records are secret under the “criminal offender record information” (CORI) statute. Former attorney general Martha Coakley shared that view, Galvin said, and the new attorney general, Maura Healey, has tentatively agreed.

But are they correct? Does the law allow the police officers to decide which arrest reports do and do not get released? The answer, thankfully, is no.

First, some quick background. The public records law creates a presumption that all government records are public. Only if a specific, listed exemption applies can the government withhold documents, and those exemptions are supposed to be construed narrowly. Galvin relies on the exemption for records “specifically or by necessary implication exempted from disclosure by statute,” here, the CORI law. The CORI law does impose certain limits on the disclosure of “criminal offender record information,” but it limits that term to information “recorded as the result of the initiation of criminal proceedings and any consequent proceedings related thereto.”

The word “initiation” is important. As late as 2010, Galvin’s office held the commonsense view that a “criminal proceeding” is initiated with the filing of a criminal complaint. Arrest reports and mug shots are generated before criminal complaints are filed, so they’re presumptively public. But in 2011, the DCJIS (which administers the state’s CORI database) told Galvin it believed “initiation of criminal proceedings” means “the point when a criminal investigation is sufficiently complete that the investigating officers take actions toward bringing a specific suspect to court.” That necessarily precedes arrest and booking, so all arrest reports and mug shots are covered by CORI. This “interpretation” is now contained in a DCJIS regulation. Another regulation says that police can release CORI information surrounding an investigation if they think it’s appropriate to do so.

In the common parlance, however, “criminal proceedings” occur in court, and they begin with the filing of a criminal charge. We don’t typically think of an arrest without charges as involving a “proceeding.” Galvin seems to agree — his office’s rulings have said only that DCJIS believes“initiation” occurs earlier — but he has thrown up his hands and deferred to this odd “interpretation” of the CORI statute.

The thing is, Galvin isn’t bound by what DCJIS says. The public records law says that the supervisor of records is entitled to determine “whether the record requested is public.” The DCJIS’s regulation adopting this view is irrelevant, too, because as noted above, the public records law only exempts documents “specifically or by necessary implication exempted from disclosure by statute.” The Supreme Judicial Court ruled in 1999 that the “statutory” exemption doesn’t extend to mere regulatory enactments “promulgated under statutory authority,” even “in close cooperation with the Legislature.” Despite this ruling, just Wednesday, Galvin’s office again refused to order state police officer mug shots to Wallack on the ground that “[b]y regulation,” — not statute — they are exempt CORI documents.

Wallack’s reporting has led us to a momentous Sunshine Week in Massachusetts. We’ve seen unusual, coordinated editorials in major Massachusetts newspapers condemning the rulings, a letter published in the Globe, the Boston Herald and GateHouse Media newspapers (including The Patriot Ledger of Quincy and The Herald News of Fall River) signed by members of the Northeastern Journalism School faculty, and extensive coverage on the normally neglected subject of government transparency.

To his credit, Galvin is calling for reforms to the public records law, and Attorney General Healey has vowed to work with his office to strengthen transparency. Reforms are sorely needed, especially to require shifting of attorneys’ fees if a requester successfully sues. But in the meantime, Galvin can and should reconsider his misguided rulings on arrest records.

– Jeffrey J. Pyle

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If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your media law concerns, please contact Jeffrey Pyle, the author of this post, at 617 456 8143 or jpyle@PrinceLobel.com, or click here to contact any of the attorneys in the firm’s Media Law practice group.

Massachusetts ruling on the withholding of officers’ criminal records is startling

In a series of sweeping rulings, the Massachusetts Secretary of State’s office has ruled that police have the “discretion” to deny public access to arrest reports, mug shots, and other criminal records.  As an excellent story by the Boston Globe’s Todd Wallack reveals, Supervisor of Records Shawn Williams has interpreted the state’s public records law not to apply to arrest records on the ground that they constitute criminal offender record information (“CORI”), as defined in another state statute.  However, Williams’ predecessor, Alan Cote, ruled as recently as 2010 that a record is not exempt from disclosure as CORI unless it is created after the filing of a criminal complaint, which arrest reports and mug shots are not.

Tellingly, the police frequently trumpet arrests they make on blogs and public statements.  However, when Wallack asked for the arrest reports of police officers accused of drunk driving, he was told they constituted non-public CORI, and the Supervisor of Records agreed.  If these rulings survive court challenge, they would appear to make Massachusetts the only state where arrest records are categorically exempt from public disclosure.  The development is another black mark on a state that has already received an “F” grade from the Center for Public Integrity on the efficacy of its public records law.

You can read the Globe story here, and hear me discuss the matter on WBUR’s Radio Boston here.

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– Jeffrey J. Pyle

If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your media law concerns, please contact Jeffrey Pyle, the author of this post, at 617-456-8143 or jpyle@princelobel.com, or click here to contact any of the attorneys in the firm’s Media Law practice group.

Making the Case for a CO2 Charge on a Snowy Day in MA

stock-photo-energy-solar panal-renewable energy

What if you could receive an annual check from Massachusetts for simply reducing the amount of fossil fuel you use? On February 4, 2015, Prince Lobel hosted a panel discussion with the New England Women in Energy and the Environment (NEWIEE) to discuss this question and the proposed legislation by state Senator Michael Barrett, which would do exactly that. Sen. Barrett was joined on the panel by Tufts University Professor of Economics Gilbert Metcalf, and Wayne Davis of Harvest Power, Inc. The panel was moderated by Zaurie Zimmerman of Business Leaders for Climate Action. The timely topic drew a great crowd despite the winter weather and the Patriots’ Duck Boat parade earlier that day.

What is Carbon Pricing?

Under Senator Barrett’s proposed legislation, An Act Combating Climate Change – SD285, a “carbon charge” would be added to the price of each coal, petroleum and natural gas fuel in proportion to the CO2 thrown off as a byproduct. The CO2 charge, which is endorsed by Prof. Metcalf and Mr. Davis, is not a tax, but instead is “revenue neutral.” The goal is not to generate revenue, but to encourage individuals to be more thoughtful about their use of fossil fuels. The Act provides that each state resident would receive an equal share of the total CO2 charges collected in an annual or quarterly check. Households could then spend some of this rebate money improving the energy efficiency of their homes and vehicles, and using cleaner, renewable energy instead of fossil fuels. A sliding price scale means the CO2 charge can be lowered by switching from coal to oil, from oil to natural gas, or, ideally, natural gas to a renewable energy source like solar or wind power.  Massachusetts businesses and other entities would receive a rebate in proportion to their share of total employment in the state, though additional rebates would be provided to businesses that are energy intensive and face significant competition outside of Massachusetts.

What are the Impacts?

The most important impact is that the Act would cut CO2 emissions more substantially than any other existing or proposed regulatory policy. In addition, low and moderate income households would get back at least as much as they pay for higher costing fossil fuels. The Act would save billions of dollars spent on imported fossil fuels, leaving more money for creating and expanding Massachusetts businesses and increasing employment.

Why Massachusetts?

Massachusetts state law requires that we cut greenhouse gas emissions (primarily CO2) to 25% below 1990 levels by 2020 and to at least 80% below 1990 levels by 2050. This will require a dramatic shift from fossil fuels to clean energy such as solar and wind, while greatly improving the efficiency of our energy use. Carbon pricing has already by tried and tested – and proven to work – in British Columbia since 2008. The money from carbon pricing has gone back to the public, repeal efforts have failed, and the system is popular. With lessons learned from British Columbia, the panelists believe that Massachusetts is ripe for implementing the carbon pricing system.

Barry C.Burke
This blog was prepared by Julie Barry and Cailin Burke. For more information, see the attached materials from the event below, or contact Julie, a partner in the firm’s Renewable Energy Practice Group, at jbarry@PrinceLobel.com, or 617 456 8090.

Carbon Tax Panel Discussion materials