Welcome back for another week of What's Next, where we report on the intersection of law and technology. Here's what we've got for you this week:

>> Social media advertising might become steeped in disclosures—and new tech—after the Federal Trade Commission's action against Teami Tea and online celebs hawking the detox tea.

>> If a teenager can edit photos and videos to protect privacy concerns, why can't the government?

>> Facebook and Twitter quashed subpoenas from a criminal defendant, who claimed the platforms' decisions to protect user data infringes on his due process and confrontation rights.

Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

No Tempest in a Teapot: Influencer Marketing After Teami Tea

Detox tea seller Teami Tea has agreed to a $1 million settlement with the Federal Trade Commission over its unsubstantiated weight loss and health claims. But the FTC didn't just go after the company, it also issued stark warning letters to its online influencer "partners," including Cardi B and Jordin Sparks. Social media followers had to click "more" to see the disclosure on the celebs' posts promoting the tea, in violation of Commission guidelines and the company's own procedures, according to the complaint filed Friday in the U.S. District Court for the Middle District of Florida.

The agency even threatened "legal enforcement action" against influencers in the future. Richard B. Newman, an FTC investigation and defense attorney at Hinch Newman, said influencers must take the FTC guidelines for clear and conspicuous disclosures seriously or face potential legal and financial trouble. "Depending upon a number of legal and factual considerations, unless remedied, individual influencers that fail to make adequate disclosures about their connections to marketers risk, without limitation, the FTC issuing [civil investigative demands] or immediately proceeding to federal court to obtain injunctions and disgorgement of ill-gotten gains," Newman said in an email.

Renée Appel of Seyfarth Shaw in Washington, D.C., said the action is somewhat of an anomaly. "It's the first of its kind where we've seen the FTC utilize its enforcement powers through the federal courts," Appel said. "To date, the FTC has kept a lot of enforcement measures related to the influencers more or less in-house, through their administrative proceedings and warning letters."

The $1 million financial penalty—reduced from the $15.2 million in total sales from the product, because of inability to pay—is also impressionable, she said. In past influencer marketing actions, there's generally no fault and no penalty, Appel said.

The complaint also emphasized form over substance, she said, focusing on the placement of the disclosure below the cutoff where readers would have to click to see more. "It really puts a finer point on the issues that the FTC has raised that, 'Hey you can have #ad, but if it's buried in your text or not in your video, the FTC is going to call it out.'"

The FTC's action means it's not enough to have an adequate contract or policy. "You kind of need an added layer of surveillance," she said. Appel expects to see more resources devoted to compliance oversight. Advertisers might change their agreements to include indemnification if the influencer doesn't follow through with guidelines or provisions that payment is contingent on compliance. "The flip side of that, is while it insolates companies, it creates a little bit of risk exposure to the influencer who is being held to a higher level of accountability," she said. "So they might demand more money."

The enforcement action could also inspire new legal tech. "It sounds crazy, but you might see new products evolve and companies coming out with surveillance software," she said. The technology could track partners to ensure compliance or collect data about influencers to help inform companies about which celebs take compliance seriously, she said.

The action follows the FTC's rollout of updated endorsement guidelines for influencers in February. In a statement, Commissioner Rohit Chopra said the FTC would consider developing requirements for platforms including Instagram, YouTube and TikTok, which facilitate and sometimes directly profit from influencer marketing.

"It's not just influencers that need to be in a heightened alert, but also these platforms like Instagram that are servicing this form of advertising," Appel said.

Cat Faces and Court Orders

If teenagers can edit out their friend's less-than-photogenic faces with cat filters and fill the internet with meme-able screenshots of videos, then shouldn't the U.S. government be able to edit the video of a prison cafeteria to meet privacy restrictions and comply with a Freedom of Information Act request?

That's what a panel for the U.S. Court of Appeals for the District of Columbia Circuit asked the Federal Bureau of Prisons in a decision Tuesday. The appeals court vacated and remanded a case where the bureau claimed exemptions and sought summary judgement over an inmate's FOIA request for surveillance footage.

The appeals court appointed WilmerHale's Ari Holtzblatt to represent Michael Evans, a West Virginia prisoner who was stabbed from behind with a Phillips-head screwdriver in the prison dining hall. Evans submitted a FOIA to dig up video of the incident, alleging the screwdriver was prison property that staff failed to secure, according to the opinion. But the Bureau said it couldn't comply with the request in the interest of other inmates' privacy concerns, because "no portion of the video was segregable and, even if it were, the Bureau lacks the technological capability to segregate it."

The panel found the government's argument that it could not separate portions of the recording lacking. "More specifically, we live in an era in which teenagers regularly send each other screenshots from all sorts of video media," wrote Judge David Sentelle, joined by Judges Patricia Ann Millett and Gregory Katsas. "Presumably, most of these teenagers have fewer resources than the United States government. It is not at all clear why the government could not at least isolate some screenshots that would meet the same sort of segregability standards typically applied to printed material."

Outside of segregating the video, the court said that the government failed to explain why it couldn't blur out faces in the video or screenshots to protect privacy. "The same teenagers who regale each other with screenshots are commonly known to revise those missives by such techniques as inserting cat faces over the visages of humans," Sentelle wrote. "While we do not necessarily advocate that specific technique, we do hold that the government is required to explain why the possibility of some similar method of segregability is unavailable if it is to claim the protection of the exemption."

Privacy Over Due Process

California's First District Court of Appeal overturned a ruling that found the due process rights of a prisoner overshadowed Facebook and Twitter users' online privacy.

The social media giants' counsel at Gibson, Dunn & Crutcher and Perkins Coie convinced the court that Derrick Hunter and Lee Sullivan, who were indicted on murder, weapons and gang-related charges, did not meet the good cause standard needed to compel Facebook and Twitter to hand over users' communications.

In a decision certified for publication Friday, the appeals court passed on the case's constitutional questions of whether a criminal defendant's due process and confrontation rights supersede the privacy protections embedded in the Stored Communications Act.

The panel, which included Associate Justice Gordon Burns, who authored the opinion, Presiding Justice Barbara Jones, and Associate Justice Mark Simons, seems to be leaving that argument up to the California Supreme Court.

Burns wrote the California Supreme Court might soon offer clarity in Facebook v. Superior Court (Touchstone) on whether barring defendants from obtaining electronic communications truly prevents them from presenting a complete defense. In that case, criminal defendant Lance Touchstone is seeking the social media messages of a shooting victim to help exonerate him in an attempted murder charge. The case has garnered amicus support from Apple and Google. Facebook is once again represented by Gibson Dunn in the matter.

"Here, however, we need not decide whether it serves as a threshold requirement or just one of several factors to be balanced because, even under a balancing test, we conclude the trial court gave this factor (and others) inadequate attention," Burns ruled.

Sullivan's legal team, which includes Bicka Barlow of the Law Office of Bicka Barlow and San Francisco attorney Susan Kaplan, are also seeking the high court's review of their case.

"This legal standard has elevated the burden on a defendant beyond that required to obtain reporters' notes and sensitive material such as medical and psychiatric records," Barlow said in an email. "This standard would make social media providers immune from any request from a criminal defendant no matter how compelling the showing of need, denying many their right to defend themselves in the most serious of criminal cases."

On the Radar

LinkedIn Takes Scraping to SCOTUS LinkedIn has brought its frequently cited dispute with hiQ Labs to the U.S. Supreme Court. Munger, Tolles & Olson and Orrick, Herrington & Sutcliffe filed the company's writ for a petition of certiorari Monday asking the high court to consider whether federal law guards against bots and algorithms from scraping its users' personal information. The threat is not just from hiQ, according to the company's lawyers. The petition also notes tech companies' attempts to beat back Clearview AI, which uses machine learning to troll the web and create a facial recognition database. The U.S. Court of Appeals for the Ninth Circuit's decision to uphold an injunction preventing LinkedIn from blocking hiQ's access to publicly available user data "denied operators of public-facing websites a critical means of protecting user data from unauthorized third-party scrapers," according to the brief. Read more from Ross Todd here.

E-Discovery After Epiq Breach Last week, e-discovery company Epiq Global was hit with a ransomware attack. The company said it has not found evidence of compromised client data but that it's unsure how long it will take to regain control over targeted systems. After the high-profile breach, some legal tech experts predict that clients will ratchet up their security demands of e-discovery companies. "E-discovery providers recognize that trying to build a data center from the ground up is not sufficient from a security perspective. They are now prioritizing data security and going above and beyond industry-standard certifications by leveraging [cloud] providers," said Neil Etheridge, chief marketing officer at DISCO. Read more from Frank Ready here.

Apple & Cisco's Fee-Shifting Test Lawyers for Apple and Cisco attracted the fiery reproach of U.S. District Judge William Alsup last year after they requested $10 million in fees and costs in the Straight Path IP Group litigation. Alsup said the suggested fees "well illustrates the evil of satellite litigation over attorney's fees motions" and told them to try again. On Monday, the firms resubmitted their requests per the detailed directions of Alsup and a special master. Apple's attorneys at Hogan Lovells are likely to take home the bulk of their $2.69 million ask. Cisco's attorneys at Baker Botts and Desmarais, on the other hand, will likely only get half of their requested fees. Read more from Scott Graham here.

Thanks for reading. We will be back next week with more What's Next.