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.

May 22, 2010

Is Facebook One of a New Class of Cyber Bullies?

Posted in Courts and social media, Criminal activity, Facebook, LinkedIn, Social networking policy at 2:04 am by bizlawblog


I’ve been looking for an excuse to get back to blogging. Like many who write blogs, I had a little burn out and I had a feeling that the “white paper” type posts I was writing were at least a little more than the average blog reader wanted to wade through on a regular basis. I’ve taken some time off to contemplate how and what to write, but the right topic didn’t come up. Now it has and I’m back.

What rang my bell was the thought that there was something of a similarity between cyber bullying and what some of the largest and most powerful social media platforms seem to be doing these days. I hope the juxtaposition of these two concepts will not be offensive to anyone. I do understand that the classic cyber bullying situation can be horrible and even lead to suicide and a whole host of other tragedies.

Likewise, in my humble opinion, it seems some of our largest social media channels may be engaging in a commercial version of cyber bullying. According to The Division of Criminal Justice Services:

Cyber bullying is the repeated use of information technology, including e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems, to deliberately harass, threaten or intimidate others. Unlike physical bullying, where the victim can walk away, technology now allows for continuous harassment, from any distance, in a variety of ways.

While cyber bullying is often done by children who have increasing access to these technologies, it is by no means confined to children. The problem is compounded by the fact that bullies are often anonymous and never have to confront their victims. This makes it difficult to trace the source, and encourages bullies to behave more aggressively than a traditional “physical world” bully.

I know that what I’m suggesting is not literally true, in that these companies are not necessarily “harassing” anyone, but what they are doing may be causing harassment, threats, and intimidation. If you have been reading the recent stories about the changes Facebook has made over the last year or so to its privacy policies, you may start to understand where I’m going with this.

Facebook and some other major players in the social media world have been busy tweaking their privacy policies for a while now. Every time they do, with the corresponding “we’re looking out for you” PR statements, they end up getting worse press than before. Assuming what I say is true, one must ask why they are doing this.

It seems to me the business model of Facebook, LinkedIn, and other social media channels, includes a plan to induce those who use their services to use them more, and to draw their friends and colleagues in to the net as well. Since these are “free” services, for the most part, this might not seem too bright. The more users each one has, however, the more they are arguably worth, both in terms of stock prices, and, for those interested in eventually finding a way to effectively monetize them. There are now paid ads on all the biggies, so the link between number of users and cash can’t be too hard to figure out.

As a result, we find Facebook filling up with what some might find to be silly games, like Farmville. The Facebook page for this game even admits:

Allowing FarmVille access will let it pull your profile information, photos, your friends’ info, and other content that it requires to work.

That, of course, would seem to be the idea. Start playing this game, invite your friends to play with you, and all of a sudden, Facebook has information it can use about you and your friends. In other words, you’ve connected the dots for them in a way they could not have otherwise developed data. This is so blatant, there is even an AddictingGames group on Facebook, where users share information about games which are intentionally addicting, as if it was a “good thing.”

Now this might not be too bad, other than the addicting part, if Facebook was simply collecting the data to make the user experience more enjoyable. It appears, however, that they may be a little more mercenary and less eleemosynary than that. A number of recent stories have told a tales some of us expected, based upon disturbing trends in Facebook’s privacy policy.

The Wall Street Journal finally broke a story, stating that:

Facebook, MySpace and several other social-networking sites have been sending data to advertising companies that could be used to find consumers’ names and other personal details, despite promises they don’t share such information without consent.

Advertising companies are receiving information that could be used to look up individual profiles, which, depending on the site and the information a user has made public, include such things as a person’s real name, age, hometown and occupation.

Several large advertising companies identified by the Journal as receiving the data, including Google Inc.’s DoubleClick and Yahoo Inc.’s Right Media, said they were unaware of the data being sent to them from the social-networking sites, and said they haven’t made use of it.

Perhaps coincidentally, Facebook, has recently undergone the largest and probably the most controversial transformation yet of its privacy policy. The New York Times and many others have recently reported the extent to which the policy length and complexity have changed:

Pop quiz: Which is longer, the United States Constitution or Facebook’s Privacy Policy?

If you guessed the latter, you’re right. Facebook’s Privacy Policy is 5,830 words long; the United States Constitution, without any of its amendments, is a concise 4,543 words.

Facebook, one of the most popular social networks in the world, has more than 400 million registered people on its Web site. Half of these users log in to the service every day, the company says, and users spend 500 billion minutes on the site each month.

But in recent months, Facebook has revised its privacy policy to require users to opt out if they wish to keep information private, making most of that information public by default. Some personal data is now being shared with third-party Web sites.

Another interesting New York Times article shows some very interesting graphical depictions of both the rapid increase in length of the Facebook privacy policy and the complexity. While the granularity of the policy may be a good thing, allowing users to pick and choose what they share and what they supposedly don’t, the user interface and default “let them see everything” model would seem more likely than not to increase the opportunity for Facebook, and others, to now collect substantially more user data than before.

I find it difficult to believe Facebook and others are collecting this data, sending it to advertisers, and the advertisers neither know they have it, nor intend to find a use for it. This comes on the heels of news that Google has been collecting more than pictures with the StreetView cars it has been sending around the globe. As reported by the ars technica blog recently:

Google has admitted that it has been “mistakenly” collecting payload data from open WiFi networks as its Street View cars drove around taking pictures. The company said that it never used any information about who was using those networks and what sites they were visiting, but the company has nonetheless decided to completely stop collecting WiFi data from its Street View cars.

Perhaps just as bad is the sudden realization that many of these social applets are more useful to criminals than to anyone else. One that has bothered me for a while, is the trip application you see on various social media channels. You know the one. It lets you tell everyone that you’re going on an important trip to Dallas or New York to hammer out a great deal or taking an expensive trip with the family to some exotic destination. You can even keep everyone glued to their screens, as they follow your progress.

One industry that seems particularly interested in those taking these trips would be your everyday cyber criminal. Danielle Hatfield points out in her article, Please Rob Me – Location Based Social Networking Burglary:

Social sites like Localtweeps make it easy for thieves to find Twitter users to size up based on zip code.

Yep, that’s right. While you are busy checking in at home, work, the grocery, your favorite restaurant . . . even your child’s school. . . (What the HELL are you thinking?!) There are people just waiting for your next move . . . plotting your habits and sizing you and your home up.

There are ways to responsibly use Location-based social networking, but checking into every single place you visit on a daily basis . . . especially your home – is not it.

I admit that what I’m getting at does not involve some big kid who is going to steal your lunch money. That’s not the type of cyber bully I’m talking about. I am talking about some hugely popular social media channels, that may have gotten so big and powerful, they feel it their right to plunder their customers’ personal data, just like the school bully who took the lunch money from the smaller, weaker student on his way to the cafeteria. The bully always picks the weaker target. The bully believes in easy pickings, rather than a fight among equals. Is it not the power of Facebook and other SM channels that may have gone to the head of those who run it.

Regardless of intent, it seems, from where I’m sitting, that Facebook and others are not much better than the school yard bully. The actions of both result from being bigger and more powerful than those they are dealing with (i.e. we users). Likewise, these bullies are essentially “anonymous and never have to confront their victims. This … encourages [the] bullies to behave more aggressively than a traditional ‘physical world’ bully.”

One thing bullies don’t like is for someone to stand up to them. That someone has to be a collective “us,” if we are to stop being bullied by the size and power of organizations like Facebook, into giving away our personal information and our friend’s data as well. It is time to stop playing those games, and get serious about protecting ourselves, our families, and our businesses. Having gone through a cycle of identity theft a few years ago, and having had it raise its ugly head again recently, even though the original thief is now in jail, I can tell you that these online bullies can do every bit as much harm as the big kid who shook down smaller students for their lunch money.

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 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.

November 23, 2009

Oh the Horror! Weighing Legal Fears Against the ROI of Social Media in Business (Part 1)

Posted in Best practices, Courts and social media, Criminal activity, Employee issues, Facebook, LinkedIn, Productivity, Social Media Tools, Social networking policy, Twitter tagged , , , , , , , at 1:15 am by bizlawblog

Social media use for individuals is becoming harder to ignore all the time. Some, like me, long avoided it, based on worries about spam and identity theft. In fact, the theft can actually exceed one’s identity. I feel concerned, when I see friends, neighbors, and clients posting online, telling the world they’re about to go on a trip for five days. Isn’t that like broadcasting to burglars? Some apparently think so. Rebecca Camber reports Facebook and Twitter users face pricier insurance as burglars ‘shop’ for victims’ personal details on networking sites.

The social media investment decision is much more complex for business strategists. So, when considering jumping into or increasing your business social media campaign, how do you weigh the potential return on investment against all those horror stories you hear about the bad things that can happen?

Less than a year ago, I received an e-mail from a business associate inviting me to “link” to him on LinkedIn. He is a client and also my associate in a “virtual” consulting business, so I “trusted” his invitation and clicked on the link in his e-mail. “Poof,” with a few clicks of the keyboard, inputting some relatively low-level contact information, I became a member of LinkedIn, my first real social networking experience. Less than a year later, I have started two LinkedIn groups, manage another one, have started a companion Facebook group, and am regularly recommending social networking strategies for my small business clients. I just had my flu shot, but sounds like I’ve caught at least one virus, doesn’t it?

We’ve all read those stories, like The Social Media Revolution is Changing the Way We Do Business, presumably leading us, as entrepreneurs, to the conclusion we should jump on the paradigm change and invest heavily in social media marketing for our company. After all, as the article says:

The number of texts sent and received every day exceeds the Earth’s population! It took radio 38 years to reach 50 million people, yet Facebook added 100 million users in less than 9 months! If Facebook were a country, it would be the fourth largest country in the world, after the U.S.  Ashton Kutcher and Ellen DeGeneres have more Twitter followers than the entire population of Ireland, Norway and Panama! These astounding facts were published recently in the YouTube video, “The Social Media Revolution”. The world of social media is exploding, bringing people to people and businesses to people in a way never before imagined; and it’s having a profound effect!

Social media is no longer a casual social interaction. Businesses nationwide are jumping into the arena, not merely to gain the ear and attention of their constituents and clients, but more importantly, to create one-on-one relationships with the public at large.

But what about The Social Media Fear Factor? Rachel Happe’s article points out that “there is plenty to be anxious about in considering using social media for business.” Among other things, there is:

  • knowing your legal and cultural boundaries and limitations;
  • being prepared to respond proactively to criticism;
  • being sure enough of your intellectual property assets to engage in sharing them, to some extent, with competitors;
  • having enough interesting content

Of course, like anything else, if you don’t know what you’re doing there is always the chance of making yourself look like an idiot. Unique, relevant content is always appreciated, as Joe Hall points out in his article, Cup of Joe: How Not To Go Viral and Look Like an Idiot.

There are, however, much worse things to fear. One of those was telegraphed by the title of Jordan McCollum’s article, Are You Breaking the Law with Social Media Marketing? Her article focused on what some consider to be new regulations or changes in existing regulations by the Federal Trade Commission with regard to self-advertising. In fact, these new guidelines, available from the FTC, really clarify existing law, which provides that if somebody is paying you to endorse a product, you must disclose it or face a substantial fine. Unless you’re trying to pull a fast one on your customers, this really shouldn’t be a problem and the “new” guidelines should be seen as assisting in preventing mistakes, rather than imposing new regulations. Nothing to fear there, so what’s the problem?

One issue is that once we publish on the Web or the social media equivalent, if we’ve made an error, it never goes away. As Eric Enge’s article points out, The Web is a Permanent Record. Once published digitally, our error is always there, lurking just below the surface (if we’re lucky and it is not on the surface) for some customer, competitor, or regulator to discover.

Years ago, I discovered the Wayback Machine, which I found very useful in litigating trademark and trade secret cases, using it to prove information posted on an adverse party’s Web site. The site’s FAQ says:

Visitors to the Wayback Machine can type in a URL, select a date range, and then begin surfing on an archived version of the Web. Imagine surfing circa 1999 and looking at all the Y2K hype, or revisiting an older version of your favorite Web site. The Internet Archive Wayback Machine can make all of this possible.

The Internet Archive Wayback Machine contains almost 2 petabytes of data and is currently growing at a rate of 20 terabytes per month. This eclipses the amount of text contained in the world’s largest libraries, including the Library of Congress.

Which of us had not clicked “Send” on an e-mail we wished we’d checked more closely before sending? Likewise, what company Web site has not posted something it wished had never seen the light of day? Knowing it can always rise from the archives to haunt us, can cause a chilling effect among the prudent. You say you are prudent so it’s not a problem. Well, can you say the same of all your employees? What about your customers and competitors? You will likely be “engaging” them by simply putting up a Web site, let alone pursuing an interactive social networking strategy with your customers and prospects.

David Berkowitz tells us there are at least 100 Ways To Measure Social Media. Is that helpful? It has to be if you know what you’re doing, but this is hardly a case of black and white. As Berkowitz says:

Some entries here can be interpreted several ways. Depending on how you define them, some of these metrics may seem redundant, while others may seem so broad that they can be broken out further. Many of these can be combined with each other to create new metrics that can then be tracked over time. It’s a start, though, so dive in and consider which ones may apply to programs you’re working on.

Sounds like we may need an “expert” here to help us determine which metrics will tell us what we need. The search for such an expert, however, creates its own set of issues, to some of which I alluded in a previous post, Is Everyone A Social Networking Expert? Robert Strohmeyer came to similar conclusions in his article, Beware the Social Media Charlatans:

For anywhere between a few hundred and a few thousand bucks, you can hire a social media consultant to come to your office and put on a training seminar for your staff. They’ll spend an hour or two pontificating about the power of social media to raise awareness of your brand and the magical benefits of building closer relationships with your customers in 140 characters or less. They’ll probably even offer you a few “insider tips” based on their “deep expertise” in the field. The only problem? It’s a load of bull.

Unless you define success by the sort of loosey-goosey standards that might make your horoscope appear to actually predict the future, the real measure of any business undertaking is that it increases your profits. But in the vast majority of use cases, neither Twitter nor Facebook stands any significant chance of doing that for business users. And if you’re a small business that depends on, say, actually selling real products and services to actual paying customers, wistfully tweeting about your daily specials is almost certainly a waste of resources.

Admittedly, I’ve probably raised more questions than I’ve answered in this initial post in a series. This is a complex, ever-changing subject, which is one reason for this blog and the LinkedIn group I started, Social Media Search and Forensics. We have just scratched the surface of trying to weigh social media fears against the Ashton Kutcher comlex. We’ll turn next to a more detailed examination of the validity of social media fears, before going on to methods to weigh those risks against the potential return on investment of employing worthy social media strategies in your business.

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.

November 6, 2009

Social Media Search and Forensics

Posted in Best practices, Courts and social media, Productivity, Social Media Tools, Social networking policy at 12:19 am by bizlawblog

Since I first started tracking news, court cases, white papers, and other information about how social media is impacting business and the legal system, I’ve seen an explosion of information. As social media starts to replace other forms of communication, including e-mail, the speed with which this information is coming out has rapidly increased.

In order to share this information, in exchange for comments from readers, I just started a new LinkedIn group, Social Media Search and Forensics. As with the Applied Entrepreneurship group I started in February on LinkedIn, I plan to add as many articles as I can each day. The real benefit from this will be your comments and insights, so I hope you’ll join me there to discuss the impact of social media.

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