January 5, 2012

Employer Ownership of Employee Social Media Accounts; The War Continues

Posted in Best practices, Courts and social media, Criminal activity, Employee issues, Productivity, Social networking policy, Uncategorized tagged , , , at 4:08 pm by bizlawblog

'Kinghts jousting at the TRF' photo (c) 2010, Frank Kovalchek - license: http://creativecommons.org/licenses/by/2.0/The topic of employee vs. employer ownership of social media accounts continues to be a popular source of concern and litigation. I wrote a post on this here about two years ago, Employer Ownership of Employee Social Media Accounts, and have periodically commented on it in the Social Media Search and Forensics group I started on LinkedIn. A few recent cases, however, indicate many involved in social media don’t really understand or appreciate some of the concepts which provide a foundation for decisions in this area, so it seems like time for a little update.

In the two short years since my initial post on this topic, the extent to which social media has become integrated into both our personal and employment related lives is astounding. At some point we will reach “saturation” but we’re still on an upward path. Facebook, for instance, was purely “social” a couple of years ago, but now is a primary, if not the only channel for marketing many businesses. Likewise, Twitter seemed to be just an abbreviated messaging system and YouTube a playground for budding artists. Now, both are key components of Fortune 100 marketing plans.

LinkedIn and other social media platforms continue to struggle with ways to gain users and financial value. Part of their strategy to accomplish this seems to be to attempt to be all things to all people. One part of the related action plan would appear to be to blur distinctions between the purely social and the purely business aspects of their services. Each of these major social media platforms must realize it is in a life and death struggle for superiority in the marketplace. If any of them lose market share or stagnate, they could easily become just another tombstone along the goldrush trail.

Talented employees are typically the most valuable “asset” of any business. Talented business owners know this and do their best to lure the most talented employees to their enterprise. In over forty years of practicing law, I’ve seen this in almost every field of clients I’ve represented. Employers do all sorts of things to find and lure key employees away from the competition. Employees, on the other hand, periodically realize they might “do better” somewhere else, and decide to jump ship. Often, the result is not pretty for anybody but the lawyers, who are hired to help straighten out the mess.

In many professions, the individuals who are most subject to this ship jumping and employee pirating syndrome are well aware of and respectful of issues such as non-compete agreements, trade secrets, etc. “Fortunately” for lawyers like me, there are always some who are not, so that keeps us busy tightening up the documentation for employers and negotiating contracts for key employees.

Although I’ve found lots of trouble on both the young and more seasoned ends of the employee-employer scale, I have to wonder if one reason this is a particularly hot topic in the social media world now, is because of the relatively younger age of key players there. Many of the “wizards” of the social media world, including employees and employers, are relatively younger, and perhaps less experienced in this part of the workings of the business world, than their counterparts just a few years ago.'Glass Mirror' photo (c) 2011, Leland Francisco - license: http://creativecommons.org/licenses/by/2.0/

These days some of us old folks still joke about the sixteen year old CIO. How likely is it that they would fully understand the difference between the social and legal implications of a Facebook, Twitter, or YouTube following? Given what appears to be an intentional blurring of the social and the business use of these social media platforms by management, it almost seems inevitable that they would not.

While I don’t know the age of former employees, Mr. Kravitz, who is a defendant in the PhoneDog litigation in California, or Ms. Nankivell, defendant in the Ardis Health case in New York, recent court orders in both cases point out some of the issues I’m talking about. Both situations are excellent case studies for talented employees, entrepreneurs, CIOs, HR folks, investors, and, of course, the lawyers who represent them.

The Ardis case

The Order in the Ardis Health case tells a fairly typical story. Ms. Nankivell was hired by serial entrepreneur, Jordan Finger. Finger, who is in his mid 30s, and lists his hobbies as “Trying to Play Golf, Race Cars and Race Boats.” He was also the sole founder of a group of online product marketing companies, for whom Ms. Nankivell was hired for the purpose of “producing videos and maintaining websites, blogs, and social media pages in connection with the online marketing of plaintiffs’ products.” According to the court’s Order, her “responsibilities with respect to plaintiffs’ online presence included maintaining passwords and other login information for websites, email accounts, and social media accounts.”

If things had gone well, we probably wouldn’t know or care about much more of this story. As things turned out, however, the parties had a falling out. This is typically bad for both parties and good for the lawyers. Many of the elements of the facts of the case may seem all too familiar to those interested in this area of the law and the business of social media.

It appears that while Mr. Finger was busy creating companies and Web-based marketing services, Ms. Nankivell was busy creating the Web site platforms for her employer and searching for a better job. Eventually the two paths came to the proverbial fork in the road. Litigation ensued when the employee refused to return equipment or access information for her then former employer’s Web sites or online accounts.

Other familiar parts of the story include the fact that the original group of “closely affiliated” companies for whom the employee worked were so entangled that she sometimes was paid by one and sometimes by another. Additionally, the laptop she initially used in the work for the companies was owned by her, but replaced by the company when it wore out. This would seem to add some forensic work for the lawyers, which is always welcome and profitable for us, but seldom appreciated by clients on either side, because they are paying to straighten out the mess.

The good part of this for the employer should have been the fact that the employee was apparently required to sign a “work product agreement” to the effect that all work created or developed by her was the sole and exclusive property of the employer in whatever stage of development or completion, and that it was agreed to be prepared as work-for-hire within the meaning of the Copyright Act of 1976. The employer also successfully registered the trademark of the new Web service, and a copyright for the Web site.

After departure from Ardis, the employee began to display, as part of the portfolio of her work on her own personal websites, content from the Web site she had been developing for her former employer. Ardis, et al. filed suit against the former employee, seeking, among other remedies, return of the login information for the employer’s various Web sites, and that she refrain from using any of the employer’s “proprietary” content and work.

In fairly typical fashion, the employer moved for a preliminary injunction, and also in typical fashion, soon ran into trouble. Despite relatively clear contract language, the New York court refused to blindly accept the situation as presenting the “irreparable harm” required for the employer to prevail at the preliminary injunction stage. This is a critical strategic issue in many of these cases.

While the employer may ultimately “prevail” on the merits of the case, after expensive proof is developed, it may very well lose an early hearing seeking what lawyers and judges call the “extraordinary” remedy of a restraining order or temporary injunction. Some lawyers will allow pressure from panicked clients to persuade them to rush into court to stop the “evil defendant” from continuing to damage them by exploiting work product or alleged trade secrets owned by the employer. Others realize this initial hearing can very well spell the ultimate success and effectiveness of the litigation, and not seek the hearing until they are fully prepared to prevail. You can read more about the foundation for the Ardis court’s decision here: Memorandum and Order.

The PhoneDog case

The recent court order in the PhoneDog case tells a somewhat similar tale. Mr. Kravitz was employed by PhoneDog as a product reviewer and video blogger. He was apparently given use of a Twitter account, “@PhoneDog_Noah,” as part of his employment. He provided content concerning his employer through a variety of social media channels, including Twitter and the company Web site. The complaint alleges that Kravitz generated approximately 17,000 Twitter followers while employed by PhoneDog.

When Kravitz left the employment of PhoneDog, the company requested that he “relinquish use” of the Twitter account. Kravitz apparently chanced the account handle to 'Analyzing Financial Data' photo (c) 2010, Dave Dugdale - license: http://creativecommons.org/licenses/by-sa/2.0/“@noahkravitz” and continued to use it. PhoneDog filed suit alleging it suffered at least $340,000 in damages as a result. It calculated this to be at the rate of an “industry standard” $2.50 per follower, per month, multiplied by the eight months which had elapsed when the claim was made.

Kravitz disputed PhoneDog’s claim of ownership of the account. He likewise disputed his former employer’s method of calculating the value of the Twitter followers, arguing that such additional factors as number of followers, number of tweets, content of tweets, person publishing the tweet, and person placing the value of the account were relevant but not included in PhoneDog’s calculations.

The court seemed inclined to determine that the Twitter account was actually owned by Twitter, according to its Terms of Service, although it stated that at this early stage of the litigation PhoneDog might be able to prove it had a “property interest” in the account. It also determined that the plaintiff had not sufficiently alleged facts to show how its former employee had disrupted the relationship between the employer and the Twitter followers, nor what economic harm this caused, and therefore dismissed the plaintiff’s claim of misappropriation of trade secrets.

Final Thoughts – For Now

The court order described here was also rendered at an early stage in the litigation, as was the one from the Ardis case. Both decisions are based upon one or more parties asking for what some lawyers might consider “risky” relief before they were ready to thoroughly prove entitlement to it. In fairness to all sides, this is common practice, but there is an art and a science involved here.

In these sorts of cases there are a multitude of jurisdictional, and claim-based issues, as well as stage of the litigation factors to be considered. For openers, there are “common law” rights, contract rights, and issues related to “work product,” work-for-hire, copyright, trademark or service mark issues, and other statutory schemes including definitions of what qualifies as a trade secret. Many jurisdictions have slightly differing judicial precedents concerning enforcement of non-compete and non-disclosure agreements, as well as case and statutory authority on claims such as conversion and interference with prospective economic advantage.

Even getting to the level of proving minimum damages to qualify to be in federal court was an issue in the PhoneDog case, so it should be clear bringing and defending these sorts of actions is no easy task for the parties or their legal counsel. These cases are often long and extremely expensive to litigate.

'The battle of lost forts ogre turn 2 (last turn sumary)' photo (c) 2009, Jon Ross - license: http://creativecommons.org/licenses/by-nd/2.0/Recent decisions on e-discovery cost sharing and social media spoliation should be enough to scare most potential litigants, but if not, there are articles suggesting some plaintiffs have begun to “weaponize” evidence preservation by sending a “litigation hold” letter “demanding preservation of electronically stored information with such breadth that corporations are settling just to avoid the cost of finding and protecting their own discoverable data.” Ability to fund the litigation is all too often a deciding factor in which side wins these cases.

Given this sort of track record of budding entrepreneurs and talented employees seeking upward mobility, it would seem to make sense to spend sufficient time and thought on how best to incorporate both an appropriate corporate culture and legal documentation in such endeavors, in order to reduce the opportunity for such financially disastrous battles.

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December 1, 2011

Social Media Forensic Resources

Posted in Best practices, Courts and social media, Criminal activity, Uncategorized tagged at 5:23 pm by bizlawblog

'Library visitor' photo (c) 2007, umjanedoan - license: http://creativecommons.org/licenses/by/2.0/I just finished the last of six seminar sessions for the Kentucky Bar Association on social media forensics and ethics. My part of the material is available here: Who is the Most Popular Lawyer Now? Social Media Ethics Issues for Lawyers

Unfortunately, when my colleagues on the program and I completed the written portion of the material we produced for the program, we were limited in the number of pages we could submit for publication, since this was going in a “book” that the KBA produces by the thousands. We all wanted to include resources to go along with the material, but simply didn’t have the room.

Since we’re now finished with the last of the sessions we did for the program, this seems like a good time to start coughing up some resources. To that end, I’ve just updated the links on the right side of this blog, to include 50+ blogs related to forensics. Many, but not necessarily all of the links at the bottom of the blogroll, under the category of Social Media Forensics, do have something to do with this. Some, however, are more focused on computer forensics, or particular forensics areas not necessarily related to social media or social networking per se.  Since these are relatively narrow resources, I have not included all of them in the more generalized social media blogroll.

Please let me know if you find any of these links broken. I would especially appreciate it if you could send me links and comments about any other sites you discover, which might be of help to those interested in social media forensics. I’ll be glad to add them to the list as a repository for those hungry for such information.

From time-to-time, I’ll try to find a way to increase the repository of resources related to social media forensics. If you didn’t notice, I recently updated the Excel spreadsheet, where I’ve been cataloging many of the more interesting social media articles I’ve come across. You can find this down on the right hand column of this blog, in the Box.net utility. There are currently over 1,000 articles listed there, related to social media. I’ve tried to include publication data, a link to the material, as well as tags, such as forensics, meta, etc.

I also curate quite a bit about social media forensics, and my Twitter feed should appear in the right hand column of this blog. I also invite anyone interested in this area to join the group I started on LinkedIn: Social Media Search and Forensics.

If you’re a looking for material for lawyers on social media, I’ve created a page on my law firm’s Web site related to this, and at the bottom of the resource page, I’ve started adding links to materials that might help. You can also, of course, find a primer on how not to handle social media in litigation, by reading some of the orders and articles on the recently decided Virginia case, Lester v. Allied Concrete Co. – Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011). In case you missed it, this is the one where a Virginia state judge ordered lawyer Matthew Murray (then managing partner of the Charlottesville office of the largest personal injury firm in Virginia, Allen, Allen, Allen & Allen, P.C., past president of the Charlottesville-Albemarle Bar Assoc. and serving as the president of the Virginia Trial Lawyers Association) to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions.

June 17, 2011

Social Media and the Future of the Legal Profession

Posted in Best practices, Courts and social media, Facebook, Judicial misconduct, Jury misconduct, LinkedIn, Productivity, Social Media Tools, Social networking policy, Twitter, Uncategorized, Web 2.0, Web 3.0 tagged , , , , , , , , at 5:02 pm by bizlawblog

The defence restsphoto © 2009 Southbanksteve | more info (via: Wylio)As I write this post, I’m watching the judge in the Casey Anthony murder trial in Florida, who has been dealing with the issue of whether or not defense counsel is inappropriately texting during witness screening. A couple of days ago, as I was preparing a final draft of my material for the upcoming Kentucky Bar Association CLE series of sessions around the state on social media ethics and forensics for attorneys, I watched the same judge admonish those in the gallery not to use the cameras on their cell phones and other digital devices, not to try to capture or otherwise “publish” pictures of any of the evidence the attorneys were presenting during the trial. Because of the graphic nature of some of the photographs, the judge apparently had decided to obscure some parts of what he was going to allow to be released to the “public” and didn’t want that preempted by those watching in the courtroom, who otherwise could (and presumably would) rush to be the first to publish these online in real time.

The practice of law has certainly changed in many ways over the 45 years I’ve been in practice. Decades ago, I was probably one of the first small firm lawyers in my state to buy a PC, after reading an article that said one of the big firms in town had just purchased 300+ computers and put them on the desk of every lawyer and paralegal in the firm, and mandated, as a form of on-the-job training discipline, that the lawyers wouldn’t get paid unless they kept their time sheets online. Probably a decade later, I was again one of the first in my state to post a Web site for my practice, with my eldest son (then age 16) doing the heavy lifting writing the code.

Where are We Going and How Will We Know When We Get There?

The extent to which the legal profession will ultimately be changed by technology, and in particular by various, still emerging forms of social networking, is still to be seen. There will always be those members of the bar who are compelled to explore and plant their flag in and on some piece of what they anticipate will be our future. One such example may be indicated by the work of Greg Lastowka, who has published a 241 page book, Virtual Justice: The New Laws of Online Worlds.

Mapphoto © 2007 Aaron Harmon | more info (via: Wylio)With reports that on-line video games are being used for money laundering, perhaps Lastowka really is ahead of the curve on this. According to a post in the Video Game Law Blog (yes, you read that correctly), criminals have been using on-line video games, or virtual property used in on-line games, to launder money. According to the story, they use stolen credit card information to buy virtual property (items, currency, etc.) on one of the various virtual property exchanges, then shuffle the property between various in-game characters to hide the trail, and, finally, sell the property on the same or a different exchange in return for cash. The extent of the activity has apparently been enough for law enforcement officials (and lawyers) to take notice. Looking for a new branch office? Try a virtual world. Seems to be a lot going on.

The transition from relatively static Web sites with “brochureware,” to more interactive sites took over a decade. According to some, the transition of lawyers experimenting with moving from “brick and mortar” buildings to “virtual offices” has “turned the traditional business model for a law firm on its head.” The proliferation of experiments with such virtual offices has indeed sparked criticism, including a post by Florida lawyer, Brian Tannebaum, who took issue with lawyers putting a picture of a big, impressive building on their Web site for the presumed purpose of “pretending you have a certain amount of experience, or credentials, or yes, even a certain type of office.

Are you still struggling with “multi-tasking?” Imagine then, if you can, what we might expect in the way of criticism of social media experiments by members of the bar, as we move from the era of lawyers experimenting with basic blogs to practicing in an era of transliteracy, holographic video conferencing (with “smell” to be added later), intelligent agents for virtual environments capable of autonomously evolving to self-improve, and a host of things currently beyond our comprehension or imagination.

Augmented reality” (AR) applications have already started to creep into our lives. “While Lawnmower Man may have led us to believe the future was a virtual one, it seems that in fact augmented reality (the overlaying of digital data on the real world) is where we’re headed.” Early applications were interesting gadgets and toys, but real progress is starting to become evident.

One example of progress toward practical, every-day use of this technology for lawyers is found in something called the NAI mobile architecture application. Although not built for lawyers, the press release should give some glimpse (for those with imagination) to applications specifically for the legal profession.

“UAR, the NAI mobile architecture application, provides information about the built environment on the basis of text, image, archival material and film on an iPhone or Google Android (and on Nokia phones at a later stage). By means of advanced 3D models, right in the middle of the city UAR shows you on your phone what isn’t there. The city as it once was – for instance by showing buildings that once stood there. The city as it might have been – by showing scale models and design drawings of alternative designs that were never implemented. And the city of the future – by showing artist’s impressions of buildings under construction or in the planning stage.”

“AR can be used on phones with a camera, compass and GPS. Point the phone at a building and you see the building on your screen with a digital layer of information on top. See, for instance, what the original design of that building looked like, or compare a design by a different architect.”

If you still doubt that this sort of technology has anything to do with lawyers, social media, and ethics you might want to guess again. The NAI app. was built using technology developed by companies like Layer. “Layar is a mobile platform for discovering information about the world around you. Using Augmented Realty (AR) technology, Layar displays digital information called ‘layers’ in a user’s field of vision through their mobile device.”

Patti Maes Projectsphoto © 2009 Steve Jurvetson | more info (via: Wylio)Play the video you can find from the links in last link above or this one showing a presentation on TED: Sixth Sense Tech of the Future, YouTube video uploaded March 21, 2009. They easily demonstrate some of the many uses of AR, allowing you to see the real world with a digital overlay of any sort of information. Imagine having something akin to a teleprompter pushing information to you just as you need it. Add virtual retinal display (VDR) technology to this, plus a few enhancements, and you have Mobile Device Eyewear of the sort already marketed by companies like Microvision. Take a look at their gallery for practical examples, including the “Social Network Master,” and one designed for presenters at seminars, allowing the user to see prepared material, receive real time updates from remote sources, and much more.

The inevitable aggregation of other technologies could include facial recognition, document imaging, and biometric tools that make our current “lie detector” technology seem like a hand cranked phone. I would venture a prediction that within a few years, a lawyer could sit in a meeting (or maybe even a trial or important negotiating session), and be able to look at a person or object (or holographic image of a remote, proposed, or no longer existing object) while background information about it and its relevance to the proceeding is concurrently displayed on eyeglasses.

minority-report-01photo © 2009 eyeliam | more info (via: Wylio)Simply extending the concept of the data streams for the NAI application mentioned above, could arguably allow a personal injury lawyer to visit an accident location, and while viewing it in the present, see an overlay of information about what the location looked like in the past, what it could look like in the future, based upon specific projections (ex. RFP bids for road improvements to a dangerous intersection), as well as visualizations used in trials by other lawyers who had also had a client injured at the location. The link to the social media is that in the Semantic world, much of the data is provided by social interaction, such as posting a call for help on a LinkedIn forum, something I see more than once every day within the 50 or so LinkedIn groups I prowl for information about business deals, litigation, etc.

Likewise, this eyewear should allow the user to immediately recognize a document (pulled out of your file or by your adversary from his or hers), display information such as drafter, date of creation, known copies and recipients, etc, as well as perhaps concurrently projecting a line of questions being streamed from an associate in a remote location, objections to admission as evidence generated by an artificial intelligence program from the lawyer’s form file archive, etc. Much of this is possible now, and contracts such as those from DARPA’s Urban Leader Tactical Response, Awareness & Visualization (ULTRA-Vis) program (an advanced technology development initiative, whose objective it is to build a soldier-worn system that provides non-line-of-sight command and control in distributed urban operations for dismounted soldiers), will likely bring initial costs down to affordable levels. Keep in mind that the mechanical parts cobbled together by folks from MIT for the augmented reality system shown in the TED video referenced at footnote 23, cost only a few hundred dollars.

Attorneys are under an ethical obligation to remain students of the law, as well as the applicable technological advances impacting it. The social media era is bringing us a paradigm shift, whether we want it or not. It should be a good thing, as we learn to access new sources of information that can help us help our clients. As with the emergence of e-discovery, to be effective, competent, and uphold ethical duties, attorneys must continue to learn, and pursue a balance between zealous representation of clients, duties to the profession, and ongoing co-evolution of law and information management techniques.

The legal ecosystem will also have to take off the powdered wigs and deal with a customer mentality that expects pizza to arrive at the door within a few minutes. Now, some such as LawyerUp are trying to even provide that. According to company founder, Chris Miles

“If I want a pizza, I can get a pizza in 15 minutes,” he says. “I can get a plumber in the middle of the night. Why can’t I get a lawyer?”

Has the legal system, notwithstanding earlier online services, now gotten to the point of offering a legal services plan so we can say
“there’s an app for that?”

June 15, 2011

Back to Work on Social Media Ethics Issues for Lawyers, Judges, Jurors, and Others

Posted in Best practices, Courts and social media, Facebook, Judicial misconduct, Jury misconduct, LinkedIn, Twitter, Uncategorized tagged , , , , , , , at 11:05 pm by bizlawblog

Writing Class 1photo © 2008 Karen Chichester | more info (via: Wylio)
It should be obvious from looking at the date of my last post on this blog that I’ve taken something of a leave of absence from actively posting here. I have been periodically updating the best practices page, but other than starting several articles I’ve not yet finished, I’ve not been actively and regularly posting here for quite some time.

On the other hand, I’ve been pretty active on Twitter, having recently passed the 3,500 hundred Tweet mark (not that this is necessarily “a good thing”), mainly about social media issues and applied entrepreneurship tactics, and developed a little band of “followers.” I’ve likewise assembled an impressive group of “smart folks” who I follow and read regularly. The Twitter ecosystem of experts is impressive if you can figure out how to sort through all the snake oil salesmen.

During my “leave of absence” from this blog, I’ve likewise posted thousands of articles on the two groups I started on LinkedIn, Applied Entrepreneurship and Social Media Search and Forensics. I also started a Facebook group on Applied Entrepreneurship. I’m even starting to raise my Klout score to a respectable level, but that has not left me much time to tend to this blog, and I’m sorry about that and I plan to remedy it.

Over the last few weeks, I’ve been working on presentations for the Louisville Bar Association and a series of CLE seminars for the Kentucky Bar Association on ethics and social media forensics issues for attorneys. I didn’t mean to leave the judges or jurors out, but with the opposing ethics opinions in Kentucky (saying it is OK for judges to have attorney “friends” on Facebook) and Florida saying just the opposite, I’m going to leave the judiciary alone for a while. I’ll get back to them shortly, and have started an article about some of the good and bad things judges are doing with, and to social media. With regard to juror misconduct involving social media in some way, articles now pop up every day, and I periodically add citations, in the comments, to my earlier post, Social Networking Threatens Another Jury Verdict.

What I have also done is to add a couple of files via the box.net widget at the bottom of the right hand column on this blog and on my LinkedIn profile page. One file is an Excel spreadsheet I had kept updated until early last year, giving title, author, date, and URL for hundreds of articles I “curated” on social media issues. I’ve just started to update that with dozens of additional articles, now reaching a total of over 500 articles related to social media issues. I have many more I have not yet had time to add, but will work on that in the next week. I have also started to include the URL of ethics opinions available online, started to refresh my tags column so one can sort the articles a little better by topic, and even added a jurisdiction column so ethics opinions will be “sortable” by state.

Also available from the box.net widget is a Social Media Glossary” in Word format, which I created for a Louisville Bar Association seminar I did last year on social media. I’ve added a number of terms and definitions to it, and it can likewise be downloaded.

If you liked what I was posting but wondered what happened to me, I hope you now know a little of what I’ve been up to. I hope the improvements to the resources, along with an effort to post on a more regular basis, will allow you to forgive my absence.

December 13, 2010

Can We or Should We Build a Self-Evolving Data System?

Posted in Best practices, Productivity, Uncategorized, Web 3.0 tagged , , , , , , , , , , , , at 1:22 am by bizlawblog

Anders Sandberg on the Ethics of Uploadingphoto © 2009 David Orban | more info (via: Wylio)

I recently had the opportunity to attend a CIO Practicum at the University of Kentucky. The session, entitled, “Process Knowledge; The Left-Brain Side of Ignition,” was faciliated by futurist, Thornton May.

The primary issue involved our relatively new ability to digitize mission-critical business flows, which has provided us with a rich new source of organizational learning and competitive knowledge. The primary question was whether or not we are using that knowledge opportunity properly. The secondary question related to whether or not we were learning what we should.

I’ve been interested in information management and knowledge processing for quite some time. Maybe it is the ADD, or perhaps seeing both law firm and consulting clients do well or not so well with it, but it has remained an interest of mine for years. I’ve experimented with a host of KM applications to make life easier on myself and my consulting clients. I’ve read a ton of books, such as Taming the Information Tsunami, by Bill Bruck Ph.D., but eventually started to develop my own systems to keep track of court dates, client needs, topical information to archive and retrieve, etc.

IBM 1620 data processing machine on display, Seattle World's Fair, 1962photo © 1962 IMLS Digital Collections & Content | more info (via: Wylio)Several years ago, I worked with a consulting client that was attempting to merge two law departments.  During the initial analysis stage of the project, I found that the director of one of the law departments regularly received a stack of reports on the corner of her desk. This “report” was a compilation of data various predecessors had felt important enough to warrant being turned into paper copies. The stack of paper was several inches high.

The new law director found that it took her an unconscionable amount of time to try to wade through the data, and likewise found that it regularly failed to provide information she needed most to properly manage her department. She then developed a list of new data to be reported and abandoned the old stack.

While it might be interesting to ask the former law department directors to review this decision to abandon the data they felt important to governing their operation, it might be more interesting to analyze what sort of data was collected at various points in time, compare it to how useful it was at that time to those who asked for it to be collected, and to try to spot trends and forecast the most expeditious methods of data collection and use in future.

EHR Interface Design = a giant MESSphoto © 2008 Juhan Sonin | more info (via: Wylio)I was somewhat surprised that most of the CIOs at the Practicum agreed that many decision makers in their organizations seemed to demand collection and reporting of so much data that, in the final analysis, this practice could actually be a source of managment paralysis. So much of the organization’s resources were devoted to collection of and analysis of minutiae, while core questions were overlooked, that critical decisions were constantly jeopardized.

I recently read an article by Scott Belsky, Beware of Reactionary Workflow. Belsky makes the point:

… we live our lives just trying to keep our heads above water. Our ability to prioritize and control our focus is crippled by an unyielding flow of incoming communication: email, texts, tweets, facebook messages, phone calls, and so on (and on).Without realizing it, most of us have entered the new era of what I call “reactionary workflow.” Rather than being proactive with our energy, we are acting in response to what is incoming. Having relinquished control over our focus, it has become harder and harder to embark on our work with intention.

2009 Bay Area Maker Fairephoto © 2009 Jeff Keyzer | more info (via: Wylio)Some say my mind works in strange ways, but what this “information tsunami” brings to the surface to me is that, on the one hand, our ever increasing ability to “digitize” essentially everything is a “plus” in such areas as robotics, but on the other, it can lead to human paralysis. We are simply being out analyzed by the machines and “AI” systems we are building.

“Way back” in 1997, IBM’s Deep Blue robot defeated the reigning World Chess Champion Garry Kasparov. More recently, Rick Martin wrote about a “Chess Terminator” who played another former chess champion. Martin notes that “the robot is apparently quite energy efficient as well, as Kosteniuk has claimed that it can continue playing for 24 hours a day for three years straight.” Although this match resulted in a draw, it produced an element of drama unintended by the human creators:

The Chess Terminator does have some flaws, however. Note that around the 2:45 mark Kramnik extends his hand offering a draw, but the robot – since it’s not fitted with any kind of optical device – just keeps playing, very nearly taking off Kramnik’s hand in the process!

Being a science fiction “nut,” you don’t have to say “Terminator” more than once to get my imagination flowing. The word conjures up hours of watching movies of former “Governator” and “Terminator,” Arnold Alois Schwarzenegger, overpowering human kind in his role as a cyborg assassin, whose sole mission, in the original, 1984 film, is to destroy humans as part of a military artificial intelligence system called Skynet.

Skynet, of course, becomes self-aware in the movie, and then decides human error and relatively slow reaction time of humans is a threat to its mission of providing the fastest and most efficient response to enemy attack. Naturally, the scifi response calls for it to embark on destruction of humans through the use of self-aware cyborgs, such as the Terminator.

I’m not ready to give up my Roomba® vacuum cleaner, for fear it will evolve into a Terminator, but I do fear that some of the artificial intelligence systems are capable of outpacing human ability to understand and, perhaps, to control them. We seem to be more capable of instilling ever increasing amounts of data and data analysis capability into things we build, but not necessarily into ourselves.

1956 ... Altaira's hit single!photo © 2010 James Vaughan | more info (via: Wylio)In a host of movies, including such classics as The Time Machine and Forbidden Planet, a subtheme is that creators of powerful machines and systems build them to such perfection, and then become so dependent upon them, that some intervening holocost or their own arrogance eventually leads them to the point that they no longer control them. The result is never pretty, at least in the science fiction world.

One reason for my fascination, however, is that it sometimes provides a way to forecast the future. Without the need to stray too far from the genre, one can peruse such books as William Shatner’s I’m Working on That : A Trek From Science Fiction to Science Fact. In addition to chronicling a number of now common inventions foreshadowed by science fiction authors, Shatner points out the threat that unleashing “technological genies” from their bottles without due consideration for the consequences, can lead to a bad result for humans, perhaps including the “ultimate hubris,” of trying to play God.

Hindsight can be a wondeful thing, but obviously not as valuable as foresight. I do believe that in many ways history does repeat itself and that in looking back, we can often use analysis to help prevent making the same mistakes in future. As Albert Einstein is often quoted as saying, one of the definitions of insanity is “doing the same thing over and over again and expecting different results.” He is also credited with saying “the problems that exist in the world today cannot be solved by the level of thinking that created them.”

I’m sure many would challenge the following thoughts, but it seems to me we already know that:

  1. we have a rapidly increasing ability to “digitze” information so that, as one person said at my table at dinner during the CIO Practicum, we are heading toward the time when every cell in our body will have something like its own IP address;
  2. the amount of data we are collecting and attempting to analyze is starting to exceed our ability to effectively use it to accomplish the goals for which it is collected;
  3. much of the data being collected and reported is the result of legacy thinking no longer relevant to the “mission” of the data collectors;
  4. we are building ever more “intelligent” machines to sift through this data tsunami and react to it because they can do so more effectively than we humans can;
  5. as the amount of data being reported to us increases, and we are involved in an increasing level of multi-tasking, we may be decreasingly competent to effectively verify the accuracy of data or use it without relying upon “the machines.”

While reliance on our machines seems to never end well for humans in science fiction tales, with the possible exception of R2-D2 and a few others, we seem hardly capable of stopping our progress toward creating more intelligent machines. Creating machines that free us, like my Roomba® robotic vacuum cleaner, hopefully allows us the “free time” to be more creative and to accomplish things other than developing another tool which might accidentally lead to the self-destruction of the human race. There are clearly a multitude of robotic creations designed to save human lives. Others, such as the system highlighted in the following short clip, can be both useful and a way to show the “cutting edge” technology available for use by a major world bank:

Right and Left Sides of the Brain / Day 126photo © 2007 Aaron Goselin | more info (via: Wylio)

At the risk of seeming like the technophobic character played by Will Smith in the movie, iRobot, loosely based on Isaac Asimov’s works, I do have to wonder if we’re not overlooking something in our race to the future. One possibility, based upon yet another scientific breakthrough, is “self-evolving data.” The thought of this came to me when I read an article by Boonsri Dickinson, How this self-healing material can sense when there’s trouble. Obviously a kindred spirit at some level, she notes:

I’m not ashamed to admit this, I loved watching Terminator. The cyborg assassin (a.k.a Arnold Schwarzenegger) always recovered from damage, no matter what happened. It turns out, the ability for material to really do this, isn’t that far-fetched after all.

  1. Engineer Henry Sodano brings a little of James Cameron’s science fiction movie into his lab at Arizona State University.

Sodano told me about how his self-healing material can sense when there’s trouble.

Essentially, Sodano thinks his polymer should be as smart as our bones. The material must know when it has a problem, know how to stop the crack from causing more damage and be able to fix it.

It’s the sensors embedded into the polymer material and external computer system that give the self-healing material the brains to know what’s going on.

Imagine a material engineered in such a way that it can fix itself just like Arnold’s character did in the Terminator series. How hard then, could it be to figure out a way to create a system for gathering whatever information you can, but engineering the system in such a way that:

  1. it learns what is most relevant now;
  2. over time is able to use the data, without human intervention, to fine tune the way it gathers, archives, and reports data in the future;
  3. is able to sort out and eliminate “biased” data;
  4. is able to spot and report trends;
  5. is able to prioritize information it reports, so that it provides humans with a sort of “just in time” and “just the facts, Ma’am” data report; and
  6. facilitates the inherent wisdom of humans in using the data without interference from generations of legacy constraints.

Anton Chekhov is credited with having said: “knowledge is of no value unless you put it into practice” Jack Vinson is credited with having said: “Knowledge without Action is useless. Action without Knowledge is dangerous.” I agree with both of these gentlemen, but wonder if we can improve our odds of ending up in a different place than many of the science fiction tales would lead us to believe we might be destined.

Already a Mac addictphoto © 2010 Ernst Vikne | more info (via: Wylio)When I started researching this topic, I was happy to find that what I was suggesting (i.e. concentrating more heavily on developing a “wise” self-evolving data system) had been in the works for quite some time. In fact, the topic includes everything from research into fuzzy systems to the Polytopia project, to patents granted for a “Self-evolving database and method of using same,” described in part as:

“Self-evolving indexing systems and methods store and retrieve information on multiple types of items. Indices evolve at least in part by providing subsequent users with summary comparison usage information based upon the choices of previous users, and in part by permitting subsequent users to can add new add classifications, parameters, and values instead of being limited by those previously used by others.”

Companies, such as IBM, have apparently been at the process of trying to develop a computer that works like the human brain. Their “SuperBrain” project has made interesting strides, but has raised a number of significant issues, such as:

  1. If humans are able to successfully re-create their organic brains with cold chips and circuits, using their natural intelligence, and technology grows at an exponential rate ( Moore’s Law), while evolution progresses at a relatively steady rate (Becoming Human)- is it fair to say that the computing power, complexity, diversity, and richness of IBM’s Blue Gene supercomputers will then outmatch that of the very brains which produced them?
  2. If the brain is the most evolved and sophisticated system known, then creating a computer that exceeds human cognitive capacities is really the triumph of Technology over Evolution – of Human Selection over Natural Selection – no? Does this then place us technically in a new stage of evolution? Are we are already in the age of self-evolution?
  3. Does it not make sense in terms of Darwinian Fitness that the brain should try to re-create itself in a form that is malleable and augmentable, allowing for the hand of Human Will to grow more robust than the hand Nature’s Will?

Likewise, there are numerous articles on everything from self-evolving Web sites and Web 3.0 to evolutionary fault repair of electronics in space applications. I am convinced that we have the ability to come at least very close to creation of truly self-aware machines in my lifetime. I have no doubt we already have, and will continue to create machines more capable of achieving a pre-defined purpose than can the human creators. Whether we should, is yet another matter.

If we continue to collect data without reaching the next level, in terms of what we collect and how we archive and retrieve it, then we will soon be buried in it. While we can instill knowledge in our machines, it seems apparent we may not have the wisdom to impart wisdom to them.

Looking at the history of one of mankind’s greatest evolutionary achievements, “civilized” government, we find that when we create a bureaucratic system, that system fairly quickly acts instinctively to preserve itself. For that reason, we often see that even temporary agencies find a way to sustain themselves well after their mission is achieved and planned term has ended.

Light-botphoto © 2005 Garrette | more info (via: Wylio)
If we endow our systems, including machines, with ever greater knowledge and ability to adapt to accomplish their “mission,” might we not find that we have created a system or machine which, like the Skynet of Terminator fame, determines that it is more capable of achieving its mission without us or that we had misjudged what the mission should be and become determined to supplant the human mission with its own?

May 27, 2010

Could Social Media Plug the BP Oil Leak? Can Social Media Clean It Up?

Posted in Best practices, Facebook, LinkedIn, Productivity, Social Media Tools, Social networking policy, Twitter tagged , , , , at 10:28 pm by bizlawblog

The title of this post notwithstanding, I’m not asking if:

  1. dropping all the Facebook  “friends,” LinkedIn “contacts,” and Twitter “followers” into the ocean directly above the horrific BP oil leak would plug it; nor
  2. if there might be a possibility that turning a year’s worth of online digital chatter into pieces of paper containing those messages would bury the leak so much as to stop it.

Granted, there are statistics indicating:

  • Facebook is said to currently have more than 400 million active users; 50% of whom, as active users, log on to Facebook in any given day; the average user has 130 friends; people spend over 500 billion minutes per month on Facebook; there are over 160 million objects that people interact with (pages, groups and events); the average user is connected to 60 pages, groups and events; the average user creates 70 pieces of content each month; and more than 25 billion pieces of content (web links, news stories, blog posts, notes, photo albums, etc.) shared each month.

These statistics come from Facebook.

  • LinkedIn may have over 65 million members in over 200 countries; have a new member join approximately every second, and and be able to boast that executives from all Fortune 500 companies are members.

These statistics come from LinkedIn

  • Twitter is said to have 105,779,710 registered users; new users signing up at the rate of 300,000 per day; and 180 million unique visitors coming to the site every month.

These statistics come from the Huffington Post

Some might say these statistics are inflated. That would certainly be a surprise wouldn’t it? The Tweet Twins, yes, you read that right, put these statistics, as of December, 2009 at:

  • LinkedIn users at 24 million unique U.S. visitors;
  • Facebook users at 23 million unique U.S. visitors; and
  • Twitter users 116 million unique U.S. visitors

Any way you slice it, these are some hefty numbers. What I’m wondering is, with all those folks using social media to connect, learn, and more, why does social media seem to have so little a role in solving the BP oil catastrophe?

I searched the BP Web site and failed to come up with an easy way to offer a suggestion to BP on how to fix the problem. I’ve heard on the news that everyone from actor Kevin Costner to some of our most brilliant scientists have tried to make suggestions, but have had a difficult time getting anyone at BP to listen to them. How could that be in a world with such robust social media platforms designed specifically to facilitate communication?

“”They’re clearly out of ideas, and there’s a whole world of people willing to do this free of charge,” said Dwayne Spradlin, CEO of InnoCentive Inc., which has created an online network of experts to solve problems.”

When I searched the BP Web site for information on the oil spill, I found very little, if anything, to allow one to post a suggestion. BP America has a Facebook page and a presence on Twitter. The official Deepwater Horizon Response has a Web site. It states:

“A Unified Command has been established to manage response operations to the April 20, 2010 “Deepwater Horizon” incident. A Unified Command links the organizations responding to an incident and provides a forum for those organizations to make consensus decisions. This site is maintained by the Unified Command’s Joint Information Center (JIC), which provides the public with reliable, timely information about the response.”

Below that statement are the names of fifteen .gov sites one might initially think were intended to facilitate the process of transmitting one’s brilliant, problem solving ideas to the “proper authorities.” Not so fast. All you get here is links to the home page of these fifteen government agencies.

The Unified Command Web site contains a link to an Alternative Technology Response Form, posted online. It also has a suggestions page where it says:

“BP has established a process to receive and review submitted suggestions, on how to stop the flow of oil or contain the spill emanating from the Mississippi Canyon 252 well. Proposals are reviewed for their technical feasibility and proof of application.”

“More than 7,800 ideas have been proposed to date. Given this quantity of technical proposals suggested by industry professionals and the public, it may take some time to technically review each one.”

Maybe they don’t need our input, with all those suggestions. As a student of how social media can be used by businesses, I find it hard to believe that putting up an essentially static Web page with a limited information form is the best way to get meaningful input. It took a while to find out how to offer a suggestion and the Web site says they are apparently overloaded with suggestions. Traditional media channels are full of stories about people who have suggestions but can’t seem to get anyone to listen.

BP seems to tout its expertise. BP America’s Web site maintains that:

“BP strives to minimize the environmental impact of its activities by applying management systems and standards and using innovative technology in its operations.”

If BP is innovative, they have not yet proven it in the Gulf of Mexico oil spill response. As of this writing, they were still struggling to find an effective way to “plug the damn hole.”

Perhaps they have not seen the wisdom or potential application of James Surowiecki’s The Wisdom of  Crowds. Surowiecki says:

“If you put together a big enough group of people and ask them to ‘make decisions affecting matters of general interest,’ that group’s decisions will, over time, be ‘intellectually [superior] to the isolated individual,’ no matter how smart or well-informed he is.”

If BP is actually getting too many suggestions to handle well in a finite amount of time, what would they have to lose by giving the wisdom of the crowd a shot? One of my favorite examples of how a business can use the wisdom of the crowd to be successful comes from Threadless. As Max Chafkin says in his article about the company in Inc. magazine, The Customer is the Company:

“…[t]he lesson of Threadless … demonstrates what happens when you allow your company to become what your customers want it to be, when you make something as basic and quaint as ‘trust’ a core competency. Threadless succeeds by asking more than any modern retail company has ever asked of its customers — to design the products, to serve as the sales force, to become the employees. Nickell has pioneered a new kind of innovation. It doesn’t require huge research budgets or creative brilliance — just a willingness to keep looking outward.”

If you are not familiar with the Threadless business model, it would be fair to say it is one in which the customers create the product. Threadless makes T-shirts. They don’t think up the designs, however. They let the customers do that. Anyone who wants to can design a shirt. Once the designs are in, customers have an opportunity to engage in a “popularity contest” and pick their favorite design. Threadless then produces the winning T-shirts for a group of potentially interested customers who are already prequalified buyers.

Could BP do worse than they are now? What would they have to lose by opening up the potential solutions and letting the world vote on the best solutions? If the “best” solutions didn’t work, it would seem they and we would be no worse off. Maybe Kevin Costner has the solution. Maybe Joe Shmoe does. I don’t know. What we do know is that BP has apparently not come up with one yet.

Maybe it is time for the wisdom of the crowds to take a shot at resolving the continuing oil spill in the Gulf of Mexico. Could social media be used to “plug the damn hole?” Could the use of social media be helpful in finding ways to more effectively remediate the damage the oil spill has and will cause?

I don’t know, but could BP do worse than asking?

That’s what I think. Please leave a comment and let us know what you think.

If you are really interested, I just started yet another free group on LinkedIn, Social Media Search and Forensics. Many of these articles and discussion about them are posted there. Please join us

May 24, 2010

Social Media Best Practices

Posted in Best practices, Facebook, LinkedIn, Productivity, Social Media Tools, Social networking policy, Twitter tagged , , , , , at 11:30 pm by bizlawblog

I seem to be getting more and more organizations asking me to talk on the issue of using social media for business. As a result, I have been collecting articles, so I can try to impart the wisdom of others upon the neophytes. In many ways, as the social media ecosystem continues to grow and mature, we are all neophytes. I have tried to learn from what others have said. I have occasionally found their wisdom too obscure or irrelevant for my purposes, but have also found some gems along the way.

This page is devoted to starting a formal catalogue of the articles I have found to be most useful or insightful, in hopes of helping others find their way.

There is so much “wisdom” and so little time, as they say, that I’d like some help building this list. If you have a favorite piece you would like to recommend for others to read, in order to find their way down the path to more a useful social media experience, please add your comments. I will add the best to this list and keep this going as long as I can.

Social Media Practices, in General

Social Media for Business

Blogging

Facebook

LinkedIn

Twitter

Filtering and Accelerating Social Media Monitoring

*For an updated and extended version of this post, click here or on the link under “Pages” in the upper right hand margin of this blog: Best Practices – Tips on Social Networking

Please take the survey on best social media “best practices” article you have read.

January 30, 2010

Social Networking Threatens Another Jury Verdict

Posted in Best practices, Courts and social media, Criminal activity, Jury misconduct tagged , , , at 2:34 am by bizlawblog

A recent article by Andrew Wolfson in the Louisville Courier-Journal recounts yet another in a rapidly growing number of cases involving allegations of jury misconduct. Jury misconduct has historically been a relatively rare occurrence, although certainly not without precedent. Wolfson reports:

A federal jury’s verdict exonerating a Louisville Metro Police officer in a Taser-related death has come under attack after the foreman was accused of researching the weapon on the manufacturer’s Web site and using the information to sway other jurors.

The case is one of a rising number nationally in which jurors have used iPhones, BlackBerrys and home computers to gather and send information about cases, undermining judges and jury trials.

The case involves the death of a man who died after police officers shocked him with a Taser. The lawyer for the man’s estate wants U.S. District Judge John B. Heyburn II to set aside the verdict because the lawyer said a juror called him to say that “at least two jurors, including the foreman, whom she described as ‘the principal advocate for police,’ consulted Taser International’s Web site and used information from the site to try to persuade other jurors.” The juror who made the call testified, during a hearing on the alleged jury misconduct, “that both jurors mentioned that the company’s Web site claims that Tasers are ‘non-lethal’ and cannot cause fatal injuries.” The juror is also reported as having said:

“It really, really bothered me that they were using that … instead of what was really said in the courtroom.”

Heyburn said at the hearing that he saw no need to punish the jury foreman, but he added: “It’s a teaching lesson for all of us that we need to be more careful about our indoctrination of jurors.”

These cases of social media related misconduct are literally running from one corner of the country to another, and are not related to jurors alone. An Oregon case reported in the Portland Business Journal related that:

Multnomah County Circuit Court Judge Youlee Yim You was shocked during her inaugural trial to discover that a domestic violence defendant was texting the victim — his girlfriend — while she was on another floor of the building waiting to testify.

A number of technology and social networking related cases have popped up in Florida recently. An article in the Florida Bar Journal by Ralph Artigliere, Jim Barton and Bill Hahn, gives a snapshot of just how big this has become.

The problem of outside influence on jurors is no longer confined to high profile cases that are covered in the press or other media. Courtroom misconduct seems to be everywhere. Recently, a witness in Miami was discovered texting his boss about his testimony during a sidebar conference resulting in a mistrial; a South Dakota juror in a seat belt product liability case Googled the defendant and informed five other jurors that the defendant had not been sued previously; a juror in a federal corruption trial in Pennsylvania posted his progress during deliberations on the Internet resulting in a motion for mistrial; a juror in Bartow, Florida, looked up a defendant’s “rap sheet” online and told fellow jurors, resulting in a mistrial; and jurors in a Florida criminal case made anti-Semitic comments to each other and consulted one of the jurors’ accountants during deliberations by telephone. Nine of the jurors on a deliberating panel in a federal case in Miami admitted to the judge that they had been doing research on the case over the Internet, resulting in a mistrial. The judge learned that the jurors were Googling the lawyers and the parties, finding news articles about the case, researching definitions and information on Wikipedia, and looking for evidence that had been excluded in the case. All this was accomplished despite the judge’s repeated instruction not to do so. These examples represent recent transgressions that were discovered, and probably represent just the tip of the iceberg of juror behavior.

In another Flordia case, reported by Laura Bergus,

A Circuit Court judge in Miami-Dade County, Florida, this week dismissed a civil fraud case brought by Sky Development against Vistaview Development. The suit claimed that Vistaview misrepresented the number of units in a condo tower Sky purchased from Vistaview last year.

The dismissal comes after a mistrial mid-May, when Judge Scott Silverman deemed text messaging between two Sky Development officials in court, one of whom was on the witness stand, as “completely…absolutely outrageous.”

Jon Gambrell reported on an Arkansas case in a Law.com article:

A building materials company and its owner have appealed a $12.6 million verdict against them, alleging that a juror posted messages on Twitter during the trial that show he’s biased against them.

Another described what “Juror Jonathan” did today: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

Even judges and lawyers have fallen into the social media dog house, when involved in court proceedings. A California lawyer was suspended from the practice of law because of his blogging while serving as juror. Martha Neil reported in the ABA Journal that an appeals court reversed and remanded the felony burglary case on which the lawyer was sitting as a juror, and:

Although reportedly warned by the judge not to discuss the case, orally or in writing, Wilson apparently made a lawyerly distinction concerning blogs: “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial,” he writes, before forging on with unflattering descriptions of both the judge and the defendant. He also failed to identify himself as a lawyer to the trial participants, the bar journal notes.

At least one court is trying to curb the social media problem by adding an additional set of admonitions to jurors. An “updated” set of jury instructions Supreme Court of Florida now includes the following language:

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse.

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

NOTE ON USE

This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

Despite the efforts of judges to reduce the problem, the incidents of jury misconduct related to social networking seem to be growing by leaps and bounds. Thaddeus Hoffmeister acts as editor of the Juries blog, which is increasingly dedicated to recounting stories of such jury misconduct. Likewise, the Deliberations blog had added a new category, Jurors and the Internet, stating it was necessary for “pulling together all the posts here on the subject:”

Over the last two years we’ve accumulated posts on jurors who blog (lots of those, actually), jurors who read blogs, jurors on Facebook and other social networking sites, jurors on Twitter, jurors researching the case on the Internet, jurors who comment on news stories,  how to ask jurors about social networking, how to find jurors’ on-line writing, why it matters, and how to deal with problems when they arise.  The way things are going lately, there will probably be many more.

The title of yet another article seems to tell the story: If We Strike All The Facebook Jurors, Who’s Left?

If we strike everybody with an I-hate-jury-duty status update somewhere on the Internet, we’re going to run out of jurors really fast.

The legislative and judicial systems have historically been far behind advances in technology. E-discovery was, and perhaps still is, the case in point. Without a paradigm shift, we must wonder where all this is going, and what impact it will have on a system of which some have said, “the wheels of justice grind slow, but they grind exceeding fine.”

The wheels may grind slowly, but the news is sure travelling faster and further all the time.

That’s what I think. Please leave a comment and let us know what you think.

If you are really interested, I just started yet another free group on LinkedIn, Social Media Search and Forensics. Many of these articles and discussion about them are posted there. Please join us.

January 1, 2010

In Search of a Social Media Expert (Part 1)

Posted in Best practices, Courts and social media, Productivity, Social Media Tools tagged , , , , , , , at 8:37 am by bizlawblog

I’ve touched on the area of social media “experts” in a couple of posts on this blog. I first mentioned the topic in When Thought Becomes Reality. Because of some interesting comments on that post, I followed up in slightly more depth in Is Everyone A Social Networking Expert? This post starts a series, which will explain why this is important to both me and my clients, and perhaps to you as well.

I’m no stranger to the duty and privilege of helping clients fulfill their desire to obtain outside assistance with emerging technologies and non-traditional expertise. Many of my clients rely upon me, from time-to-time, to assist them in the process of finding and engaging “experts” in various fields. Sometimes, they ask me to simply review an engagement letter submitted by a supposed expert or to draw up an agreement to retain an expert they have already found and determined to be “qualified” for their intended purposes. Sometimes, they ask me to assist in locating an expert they would deem “suitable” according to their specifications. Sometimes, they’re not even sure what they need, but they think they need some sort of “expert,” and ask me to assist in the process.

In each of these situations, I need some knowledge of the goals of my client in retaining the services of an expert. In drafting a contract, I need to know what my client wants to achieve and to avoid. If they have already located and qualified the expert, my task is relatively simple. I review the contract presented by the expert, or create one for my client, ensuring the usual suspects are accounted for, such as deliverables, “avoidables,” benchmarks, term, compensation, termination options, the normal independent contractor provisions, and a host of other contract provisions most transactional lawyers are accustomed to dealing with on a day-to-day basis.

Assisting my clients with the acquisition of software programmers, hardware developers, Web developers and so-called SEO experts has been a main stay of my law firm for many years. More recently, the request has been for those who can “fix” the problems left by some of the foregoing “experts.” In the last year or so, however, clients seem to be increasingly interested in hiring social media expertise. It is one thing to help a client engage a structural engineer and quite another to help vet and then wordsmith contract language for a social media expert. Thus came my research into just what qualifies one to be called a social media expert.

If I am involved in locating an expert in a particular field, presuming it is one of the “traditional” fields, such as engineering, the role I play is still relatively easy. In such traditional fields, the process of locating and qualifying an expert typically revolves around ensuring the education and experience of the candidates meet certain criteria, including relevance to the task at hand. Educational degrees, professional certifications, licenses, work experience, and references from satisfied customers, provide some of the basic metrics upon which the candidates may be graded, along with availability within the given time frame, compensation formula, etc. There is nothing new here.

Much has been written about what makes one an expert, generally, and the various factors deemed to constitute expertise in many specific fields. When looking at this issue in the context of social media, however, I found quite a few articles contemplating whether anyone could deserve title of “expert” in such a relatively new field, and particularly one without generally recognized accreditation standards at that.

I decided to approach the project of establishing my own set of social media expertise metrics from a few angles. The common joke in the legal field is that the definition of an expert is simply someone with a briefcase who lives more than a hundred miles away. The quotes on expertise from “notables” span the full range. Here are some samples.

  • “I am an expert of electricity. My father occupied the chair of applied electricity at the state prison.” (W. C. Fields)
  • “What’s an expert? I read somewhere, that the more a man knows, the more he knows, he doesn’t know. So I suppose one definition of an expert would be someone who doesn’t admit out loud that he knows enough about a subject to know he doesn’t really know how much.” (Malcolm Forbes)
  • “Make three correct guesses consecutively and you will establish a reputation as an expert.” (Laurence J. Peter)
  • “An expert is a person who avoids the small errors while sweeping on to the grand fallacy.” (Steven Weinberg)
  • “One accurate measurement is worth a thousand expert opinions.” (Admiral Grace Hopper)

Not finding those pearls of wisdom particularly helpful, I wondered if the simplicity of graphical representations might be helpful. Folks say a picture is worth a thousand words. An old favorite in this medium is Indexed, which produced one of its typically perceptive virtual three by five card drawings, labeled “But it worked in the 90s!” That deserved a chuckle, but not a cigar, so the search continued.

Next up was The Visual Thesaurus® created by Thinkmap, Inc., a company which says it “develops and markets software that uses visualization to facilitate communication, learning, and discovery” and specializes in “user interfaces and visualization mechanisms that allow end-users to more effectively browse and understand complex information.”

The visual thesaurus search results for the term “expert” rendered a mindmap-like spider web featuring the words adept, good, practiced, proficient, skilful, skillful, and tangential association of the word or concept “technical.” That produced what most would consider a pretty good sampling of terms to describe someone we already considered to be an “expert,” but didn’t provide much help in the more granular aspects of selection criteria.

Since few professions are more “granular” than the law, I returned home to more familiar ground and found something I wasn’t expecting. That unexpected thing was that both legal and business principles warned of the dangers of placing too much confidence in the opinions of experts.

The American legal system has long been concerned that the opinion of “experts” will unduly prejudice a jury, causing it to rely upon whatever the experts says, rather than weighing all the evidence and making it’s own determination. This system relies on the judge, as gatekeeper, as well as on procedural and evidentiary rules. Article VII of the Federal Rules of Evidence, for instance, provide a framework for matters such as separating expert from lay opinions, the bases of opinion testimony by experts, and limitations on admission of the expert’s opinion on ultimate issues.

Likewise, further clarification of the use of experts in litigation came in 1993, when the United States Supreme Court granted a writ of certiorari to hear Daubert v Merrell Dow Pharmaceuticals. Most lawyers need only view the Daubert decision as establishing a standard for dealing with admissibility of expert testimony in court. For our purposes in looking at experts, it also points out that when a legislative body (i.e. Congress, which was largely made up of lawyers) decided to adopt the Federal Rules of Evidence in 1975, it created an opportunity for other lawyers to argue whether the rules impacted the Supreme Court’s decision in the 1923 case, Frye v. United States.

Although the issues may still not be entirely resolved, let’s say, for the sake of argument, it only took the legal system seventy years to clarify how it felt courts should deal with exposing juries to the opinions of experts. The “surprise” I mentioned earlier comes full circle, from the archives of the business world, namely Fortune magazine.

“Often companies will underestimate the abilities of their own people, opting instead for the supposed advantages–chiefly financial–touted by someone with a briefcase from 100 miles away.”

This sounds strangely like the business world’s version of what the legal system has long feared, which is that the opinion of someone denoted as an expert will cause normal folks to turn into jelly, forsaking the lessons they may have learned from their own education and experience. So if we can’t necessarily even agree upon whether we should listen to an expert opinion, how am I to deal with a client which insists on hiring one in an area which is still emerging and has no generally accepted standards? We will explore this in the next leg of this quest to determine who is or is not a social media expert.

That’s what I think. Please leave a comment and let us know what you think.

If you are really interested, I just started yet another free group on LinkedIn, Social Media Search and Forensics. Many of these articles and discussion about them are posted there. Please join us.

December 17, 2009

Employer Ownership of Employee Social Media Accounts

Posted in Best practices, Courts and social media, Employee issues, Facebook, LinkedIn, Productivity, Social networking policy, Twitter, Uncategorized, Web 2.0 tagged , , , , , , , , , , at 1:13 pm by bizlawblog

Over the last 35 years, I’ve spent a lot of time dealing with disputes between employees and their employers. I’ve been on both sides of the table, drafting and enforcing non-compete agreements, and helping employees break those, which did not adhere to legal or moral principles.

In “the old days,” some of the primary issues related to whether the employer could keep an employee, or former employee, from using information the employer said was “proprietary” and, in many cases, whether the now departed employee had been using that information, while still employed, to set up or assist a competitor. With the onset of social media, many “prospectors” are now using social media to find business prospects and to maintain a relationship with them.

In some cases, the employer will mandate that employee are to engage in using social media channels, such as LinkedIn and Facebook to hunt for prospects or deal with customer service issues. In some cases, it is the employee who suggests this tactic or uses it, often outside of the office environment, to do the prospecting. As is the case with the enforceability of non-compete agreements, there is a great deal of misinformation and confusion about what the law says about all this. As is also the case with non-compete agreements, what the law says may be different in different jurisdictions. In Kentucky, for instance, the case law has matured in different directions on some non-compete issues, between the state court system and the federal courts in Kentucky. This is great for lawyers, but not necessarily so for those trying to find their way.

The relatively new world of social media adds a new layer of complexity to this, and the ownership of social media accounts, as well as ownership of the contacts and other data contained therein, has become an increasing source of questions for employers and their lawyers. Many employers ban the use of social media, on site or off, and particularly prohibit unauthorized references to the employer, brands, other employees, “the boss,” etc. Some of these fears, as described in David Kelleher’s article, 5 Problems with Social Networking in the Workplace, are well deserved, and some are not. Fortunately for employers, most, if not all of this is easily clarified with some basic but well drafted documents.

Long before the advent of the social media age, employers routinely required employees to sign non-compete and non-disclosure agreements. If properly drawn, these agreements defined what intellectual property, including clients, prospects, and other proprietary or “sensitive” information belonged to the employer and was prohibited for post employment or other unauthorized use. Likewise, courts have dealt for many years with the issue of the employer’s right to monitor and screen employee communications, including e-mail.

What is relatively new these days is the ownership of social media accounts and content. I have represented many client groups, such as those in the insurance business, where it is relatively common for agents to take their “book of business” or client accounts with them from agency to agency. In many cases there are non-compete agreements binding the parties. Since moving around is so common, however, many agencies will agree to allow a well-networked agent to come in, with the option to take their “book of business” with them upon departure. Only new clients generated at the new agency, or other particular “house accounts” might be protected, in order to induce a successful agent to come on board. This too can be easily defined, and I’ve drawn up hundreds of these agreements over the years.

The ownership of an employee’s “personal” LinkedIn accounts and contacts, however, has not been well defined by the courts, at least on a specific basis. Likewise, Facebook and Twitter accounts are becoming some of the most valuable tools in the hunt for prospects and retention efforts to maintain current business. In many cases, these accounts have been created by an individual prior to the employment situation in which they are used. In some cases, it is the employer which provides the basics, and may even be setting up the account used by the employee. Witness the note from Tony Hsieh, CEO of Zappos.com, providing employees with a Beginner’s Quick Start Guide and Tutorial to Using Twitter. Once again, a clear employee use policy and non-compete agreement and NDA can resolve the issues to avoid most disputes and win the rest. Having a well thought out damage control procedure is also helpful.

For those not endowed with good legal and HR backup in these areas, social media sources can provide the answer to the many of the problems involved in their use. Typically, the cases involving confidentiality revolve around the expectation of privacy. A subset of this issue relates to whether a policy is in place, existence of password use, and other indications the social media content would normally and reasonably be anticipated to be private or something in which the employer had an interest. This has been the primary rule on e-mail accounts and content for many years and has been often litigated, even prior to the relatively new federal rules on e-discovery. This is not much different from court decisions indicating an employer can secretly videotape an employee on the job.

Beth Harte’s nice article on this, Who owns your Twitter or Facebook Connections?, is a good start. As she points out:

You might not like what I am about to say here, but I believe that if a company is paying you to connect with people online on their behalf…they own those connections…

Take my Twitter/Facebook accounts, I am Beth Harte on both. If I were to join a company in marketing capacity and continue to increase my connections while they are paying me, I believe those connections are the property of my employer. Or are they?

How do we address this potential issue? Here’s one thought…

Prior to accepting a job, negotiate that all followers/friends (existing or new) will remain your property and that the company has the right to “borrow” your accounts and connections for the period of your employment.

Using the example of my insurance agency clients, Harte’s suggestion would probably be:

Prior to accepting a job, negotiate that all followers/friends (existing or new) will remain your property and that the company has the right to “borrow” your accounts and connections for the period of your employment.

Does that work? Would employers buy into that? Would we need to prove the value of our accounts before they would accept those negotiating terms?

Blogging provides an even more interesting set of problems. Some, such as Chris Gatewood, feel “Employers cannot control their employees’ online conduct away from the office, and for the most part, they should not try.” In many cases, employee blogs are primarily personal, but may contain statements about their employer, the employer’s products or services, and sometimes about policies, other employees, etc. Likewise, it is easy for a current or former employee to “slip” and post something about a new technology the person has worked on, or other information the employer would consider proprietary. Once again, a good non-disclosure agreement can deal with these issues in advance.

Joshua-Michele Ross points out in his article, A Corporate Guide For Social Media:

Big corporations are scratching their heads trying to figure out how to harness the benefits of increased employee participation while mitigating the risks. Clearly there is no one-size-fits-all: If you are in financial services you have unique concerns for privacy, if you are part of the YMCA, you must be aware that having counselors “friend” teenagers is not appropriate, etc.

While there are possible negatives involved in having employees on the social Web, most employees have common sense. Begin with a set of possibilities first (increasing awareness, improving customer service, gaining customer insight and so on) then draw up a list of worst-case scenarios (bad mouthing the company, inappropriate language, leaking IP, to name a few). Modify the guiding principles for your employees below to help mitigate the risks you’ve identified.

Once you embrace having your employees participate in the social Web, give them a few basic guiding principles in how they conduct themselves.

While issues related to ownership of social media accounts and content are relatively well defined, in those cases where there are clear policies and agreements in place, as well as where the activity is clearly sponsored or encouraged by the employer, and the employee is using the employer’s resources to engage in such activities, the law is less settled in the case of pre-existing “personal” accounts used with a new employer, or used without the employer’s knowledge or resources. These can likewise be resolved easily with a good agreement, but we lawyers are waiting to pay our kids’ college tuition, dealing with those cases where the employer or employee has not been perceptive enough to resolve this in advance with a basic set of written agreements and policies.

This area of the law is rapidly changing and newer technologies, such as Twitter, and concepts such as “followers,” will provide the need for professional assistance to help manage these issues, and the risks they entail, for many years to come. Yesterday’s non-compete and non-disclosure agreement, as John Jantsch points out in his article, Do You Have a Social Media Non-Compete?, may not work tomorrow, unless it is particularly well drawn to provide for such new technologies and concepts.

I try hard to be proactive with my clients, but I “love” clients who get their legal advice, and forms, online and then have to make “The Call” to the lawyer to seek help. I believe it may have been GM’s Mr. Goodwrench commercials, which proclaimed, “pay me now or pay me later.” In these cases, the pay is much better for the lawyers “later” and for the parties, earlier.

That’s what I think. Please leave a comment and let us know what you think.

If you are really interested, I just started yet another free group on LinkedIn, Social Media Search and Forensics. Many of these articles and discussion about them are posted there. Please join us.

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