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.

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.

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 17, 2009

Shapeshifting; Using Social Media to Maintain Online Reputation

Posted in Best practices, Criminal activity, Employee issues, Facebook, LinkedIn, Social Media Tools, Social networking policy, Twitter, Uncategorized, Web 2.0, Web 3.0 tagged at 1:42 am by bizlawblog

If you like science fiction movies, you may have seen alien entities, which can change their physical appearance, sometimes mimicking other creatures. If you’re more down to earth, perhaps you’ve heard the expression “Sometimes you get the bear and sometimes the bear gets you. In either case, you might need a vet.

In the case of maintenance of one’s online reputation, social media can be either the tool you use to achieve your goal, or the jaws of your destruction. Aliza Sherman’s article, Don’t Ruin Your Social Media Reputation, points out one of the problems of social media, in the context of vetting information:

One of the continuing perils on the Internet– that is even greater now that anyone has the ability to publish online– is not knowing what information is credible or not. Misinformation can spread like wildfire across Twitter, Facebook and the like, and the last thing you want to do is get the reputation of being a conduit for misinformation. Take care when repeating what you hear from others in social media circles.

Sherman also gives us five things to avoid. As she puts it:

I’ve been thinking a lot about the way some people abuse the online tools that many of us are trying to use for good things. Whether you are using the Internet and social media for business or for personal use, there are good ways to use these tools, but there are also ways that can get you into trouble that you might not anticipate.

Sherman’s list includes five ways she frequently sees people damaging their online reputations:

  1. Social media spam, consisting of “irrelevant unsolicited sales pitches for strange and unneeded products,” spammy endorsements and other messages sent out automatically or unwittingly;
  2. Indiscriminate “friendliness,” by those whose sole goal seems to be collecting as many “friends” or “followers” as possible, but for the purpose of treating them as cattle to be used;
  3. Autopilot networking, with the help of increasingly efficient tools which end up giving the impression the interaction is canned rather than truly “social;”
  4. Missing the appointment with the Vet, by failing to check information before passing it on as a thoughtless repost or retweet; and
  5. Playing the undercover hired gun, where those with whom you interact online later feel betrayed or conned when they learn you’ve endorsed a product for pay, or otherwise played a deceitful role.

Lawyers like myself are known to love to say cute little Latin phrases like caveat emptor or “let the buyer beware.” A similar warning is perhaps in order for social media. A paradigm shift is occurring in our online communications. In the old ARPANET days, communications were between individuals and institutions where there was generally a high level of trust and respect. These days, using information obtained through social media channels may be closer to buying a watch from a street corner vendor.

Companies, which fail to recognize this shift in the reliability of information, are certainly at risk. A post on the Social Media Reputation blog makes the point as follows:

Having been a consultant regarding online media for over a decade, I am constantly growing very weary of informational white-paper companies that are charging top dollar for “analysis” of an industry that is forever changing. In my previous life working at a Fortune 50 company on interactive projects, I can tell you that far too many “big boy” companies are absolutely relying on the wrong informational sources to make huge decisions. This old-school system is leading more and more companies down the path of digital suicide.

Granted, many might be more likely to be cautious of a post on the Pissed Customer blog or Ripoff Report, than one found on Forbes or the Wall Street Journal, but how is one to really know? Typically, the longer a publication has existed without substantial challenge to the veracity of its reports, the more trusted it becomes. Recent U.S. political campaigns, however, have cast substantial doubt on the impartiality and credibility of many such long-standing main stream media reputations, and the economy continues to take its toll on others.

Queue Twitter, Facebook, and other social media channels as the heirs apparent. As the paperless paper box becomes one of the next anachronistic surprises of our decade, we find data flowing at us from all directions at an increasing velocity. The volume of data confronting us is likewise increasing, leaving us with exactly the task Microsoft predicted in its book, Taming the Information Tsunami. Regardless of the techniques used to survive this digital perfect storm, the time in which we have the ability to vet the data barrage will continue to shrink.

The Web is full of hideous examples of damage to corporate reputations, whether deserved or not. We do, however, have the ability to take some steps to perform maintenance on our online reputations. A few simple tactics are outlined in an article by Lawrence Perry:

  1. Always publish meaningful content- when you publish meaningful content, you can expect people who follow you to truly believe what you have to say in the future.   If you send spam and post useless information in your accounts, people will not learn to trust you.
  2. Be transparent- you do not have to be too personal or reveal too much information in your Twitter, Facebook and other social media accounts but it would really help if you remained as truthful as possible in your interactions with clients.
  3. Post your picture and your website in your profile- it would really help a lot if you use your own photo and if you link to your website and provide more information to your followers. These will help them establish a better connection with you because they really know who you are, what business you are promoting, etc.
  4. Try to communicate in a personal level- do not use bots or send standard pre-written messages through DM.  On Twitter, make sure you send personal direct messages.  This may take a lot of time but don’t think of that as wasted time but an investment on your target market.

I’ll talk more in a later post about methods to monitor and protect both personal and company reputations online. For now, however, I wonder if there is some new twist coming down the pike to fill the need I think we all have, to more easily increase the level of trust we have for data received online. Where there is a need, there usually is a solution vendor.

We all know there have been innumerable snake oil vendors in the software industry, but VeriSign and PayPal seem to have become standards, through trust, in being acceptable allies in managing our risk with online transactions. Now all we need is a “veracity meter” attached to all social media output.

Some companies are struggling with methods to “pre-prove” the expertise of those who engage in online community discussions, such as LinkedIn. As a member of a variety of networks, one can gain “expert” points by being the “winning” responder to an online inquiry from another member of the group. This is a quality argument in favor of the member giving the best answer, but there are also quantity point in some networks, where part of one’s rating as an expert is based upon the number of posts accomplished during a period of time. Surely, there must be a more efficient way to increase our trust of online data.

I’ve come across those who say they can detect the aura of others, and tell if a person is good or bad, honest or dishonest. While I may question exactly what it is they are seeing, wouldn’t it be nice if you had a method to easily detect and read the aura of online communications. Perhaps such communications will, in our Web 3.0 or 4.0 world, come with a thoroughly vetted avatar emitting an aura of credibility. Could it be that the devious spammer’s message will someday come with a universal avatar bearing some sort of aura which looks like horns, while those honest and well vetted posts by yours truly will be embraced by my avatar, wearing an easily detectable halo of honesty?

Stories, like Dick Pelletier’s, Avatars will help us navigate tomorrow’s electronic maze, make it seem like they’re right around the corner. Others say they might work their own paradigm shift.

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 15, 2009

Trick or Tweet? Is Twitter a Viable Emergency Notification System?

Posted in Best practices, Criminal activity, Employee issues, Facebook, LinkedIn, Social Media Tools, Social networking policy, Twitter tagged , , , , , , , , , , , at 11:40 pm by bizlawblog

Trick or Tweet? That question is not intended to remind you of what you hear on Halloween, when your neighbor’s kid knocks on your door and asks the annual question with a lisp.

We recently finished Halloween shenanigans, where kids disguise themselves as fictional characters and knock on doors in their neighborhood, traditionally asking if you’d like to give them a treat or risk a less enjoyable alternative. The question raised in this post, however, is whether use of social media, and Twitter in particular, is a bit of the same situation. Is Twitter being touted as a viable emergency notification system when it is not fit for that important purpose? A companion question might be whether we, as customers (i.e. The “Twitterati”), are putting pressure on this social media channel to transform itself into something for which it was not originally intended.

Many schools may start using social media channels, such as Twitter and Facebook as a more regular part of their emergency notification program. A variety of vendors are coming up with way to make this happen.

In a move that plenty of other institutions are sure to follow, Oregon’s Pacific University has integrated its emergency notification system with the popular social networking sites Facebook and Twitter. The move allows the 3,100-student university to send emergency messages to students via e-mail, RSS feed, or text message to mobile phones, Blackberries, wireless PDAs, pagers, and smart or satellite phones–and now Twitter or Facebook.

The university subscribes to an emergency notification system from Omnilert’s e2Campus that allows administrators to send a single message to a designated list of recipients on a variety of devices and in various formats. In November, e2Campus added Twitter and Facebook as options–and Pacific University was the first institution to jump on board.

University Links Twitter, Facebook with Notification System

My last post, Did Twitter Replace Cell Phones for Ft. Hood Shooting News?, mentioned that even the military recommended Twitter as an emergency information source, when a sudden surge in emergency traffic crashed the civilian cell phone system in the Ft. Hood area. As a country, the United States has been blessed with fewer natural disasters than many countries. Clearly, we are still trying to digest the disaster preparedness and recovery lessons from far-reaching events like hurricane Katrina, which likewise disrupted cell phone traffic in a number of ways. Is Twitter any better?

Matt Williams, Assistant Editor of Government Technology Magazine, posted an interesting article, mentioning some of the many uses the U.S. government is making of Twitter:

When Twitter’s founders launched the service in 2006, they advertised it as a way to keep abreast of friends’ everyday lives. The idea of “tweeting” in short bursts about mundane details – “I’m watching Dancing with the Stars!” – may seem narcissistic, or pointless. But a loyal following has found novel and unexpected applications for the service. This movement includes government agencies, which are use Twitter for various functions, such as real-time alerts about emergencies, election results and even science projects.

The most practical government applications for Twitter are in public safety and emergency notification. For example, the Los Angeles Fire Department (LAFD) updates its Twitter page with bulletins about structural fires, the number of responding firefighters, and injuries and casualties. A typical post is something like: “12126 Burbank Bl* No ‘formal’ evacuations; Firefighters maintaining 500′ exclusion zone pending LAFD Hazmat arrival…”

“The question really would be, why not do Twitter?” asked Bill Greeves, the county’s IT director. “It is 140 characters, so granted, you are limited in the message you put on there. But we’re not creating content for Twitter; we’re creating content to send out a message to the public, and we’re just taking advantage of the latest and greatest channels available.”

The beauty of it, Greeves said, is that if something better replaces Twitter or it all falls out of vogue, it won’t hurt the bottomline.

Governments use Twitter for Emergency Alerts, Traffic Notices and More

Williams’ article notes that one of the major hurdles to greater government use of Twitter may be “viewership,” but it appears even the U.S. State Department has taken note of Twitter’s potential use in an international context. An article by Lev Grossman, Iran Protests: Twitter, the Medium of the Movement, points out:

The U.S. State Department doesn’t usually take an interest in the maintenance schedules of dotcom start-ups. But over the weekend, officials there reached out to Twitter and asked them to delay a network upgrade that was scheduled for Monday night. The reason? To protect the interests of Iranians using the service to protest the presidential election that took place on June 12. Twitter moved the upgrade to 2 p.m. P.T. Tuesday afternoon — or 1:30 a.m. Tehran time.

So what exactly makes Twitter the medium of the moment? It’s free, highly mobile, very personal and very quick. It’s also built to spread, and fast. Twitterers like to append notes called hashtags — #theylooklikethis — to their tweets, so that they can be grouped and searched for by topic; especially interesting or urgent tweets tend to get picked up and retransmitted by other Twitterers, a practice known as retweeting, or just RT. And Twitter is promiscuous by nature: tweets go out over two networks, the Internet and SMS, the network that cell phones use for text messages, and they can be received and read on practically anything with a screen and a network connection.

This makes Twitter practically ideal for a mass protest movement, both very easy for the average citizen to use and very hard for any central authority to control. The same might be true of e-mail and Facebook, but those media aren’t public.

This use of Twitter in a mass crisis has apparently not gone without notice at headquarters. Twitter co-founder, Evan Williams, in comments to the BBC about the Iran-related maintenance delay said:

“We did it because we thought it was the best thing for supporting the information flow there at a crucial time, and that’s kind of what we’re about – supporting the open exchange of information.

“So it seemed like the right thing to do.”

Twitter Iran delay ‘not forced’

Is Twitter the new boss in social media town? Even networks like LinkedIn seem to be trying to attach themselves to it, as Taylor Singletary points out in his article on the LinkedIn blog, You want Tweets? There’s an App for that…:

As you’ve likely heard by now, we launched our first Twitter integration features at LinkedIn earlier this week.  For professionals who want to make Twitter part of their professional identity, you can now easily add your Twitter account to your LinkedIn profile, and seamlessly post LinkedIn status updates to Twitter, and vice-versa.

This launch also brings with it a brand new addition to the LinkedIn application platform: Tweets.

Tweets is an application that allows you to seamless integrate basic Twitter functionality into your LinkedIn experience.

Twitter itself, however, is not immune from interruption of service. Last August, it was the subject of an apparent denial of service attack. Eliot Van Buskirk’s article on Wired gives a nice outline of the event:

Twitter was shut down for hours Thursday morning by what it described as an “ongoing” denial-of-service attack, silencing millions of Tweeters. It was the first major outage the service has suffered in months and possibly the first ever due to sabotage. The outage appeared to begin mid-morning, EST, and affected users around the world. After about three hours, the service was coming back online in fits and starts.

In a denial-of-service attack, a malicious party barrages a server with so many requests that it can’t keep up, or causes it to reset. As a result, legitimate users can only access the server very slowly — or not at all, as appears to be the case here.

Not only was the site down, but client applications that depend on the Twitter API could also not connect to the service, creating a complete Twitter blackout. According to June ComScore numbers Twitter has more than 44 million registered users and its user base has been growing rapidly for months as it becomes better known in the mainstream.

Denial-of-Service Attack Knocks Twitter Offline

Twitter’s statement was, of course, less verbose:

We are defending against a denial-of-service attack, and will update status again shortly.

Update: the site is back up, but we are continuing to defend against and recover from this attack.

Update (9:46a): As we recover, users will experience some longer load times and slowness. This includes timeouts to API clients. We’re working to get back to 100% as quickly as we can.

Update (4:14p): Site latency has continued to improve, however some web requests continue to fail. This means that some people may be unable to post or follow from the website.

Ongoing denial-of-service attack

Some, such as Roberta Whitty, a member of the Gartner blog network, clearly feel it dangerous for organizations to rely upon Twitter:

The denial of service attack on Twitter should remind organizations that are automating their emergency call trees and crisis communications that a single end point isn’t good enough. Given the growth in social networking, more and more organizations are starting to think about leveraging these sites for emergency/crisis communications. But if it becomes your only end point, you risk not getting your message out when it is most needed – during a disaster.  In addition, no national telcom network has been tested for a regional disaster, so your phone messages might not get delivered either. Hence, build for emergency notification around multiple channels for best coverage. What is your organization doing to support best coverage?

Don’t Rely Only on Twitter for Emergency Notification

One must also wonder how the continuous barrage of scams might impact use of any form of social media as an emergency notification system. Michael Arrington’s article, Facebook To Increase Enforcement Of Anti-Scam Rules, points out:

Facebook says that deceptive ads are a widespread problem on the Web…

Anyone who doesn’t engage in scammy behavior right now is at a monetization disadvantage. There are real similarities between this issue and steroid use in baseball. As long as the MLB didn’t really enforce steroid use among players, it was a competitive necessity to take the drugs, and so many more players took them than otherwise would.

We know that companies such as Microsoft are the target of frequent attacks by hackers. Some of these may have gained insider knowledge as employees of their targets and are thus extraordinarily effective in their destructive efforts. How could any governmental entity, however, think it might be less likely to attract detractors?

Referring to last Augusts’ attacks against both facebook and Twitter, Ryan Singel’s article noted:

They don’t make any sense.

“I’m afraid two outliers make a line and there is something going on… We have entered the third generation of denial of service attacks, and anyone that plans on the rationality of criminals is at risk.”

What does that mean? It means if you make the assumption that the bad guys online are just a new breed of bank robbers, that can get you into trouble if there are a few sociopaths mixed in.

The ongoing attacks Thursday on Facebook and the micro-publishing site Twitter likely involve tens of thousands of compromised computers under the control of a single person. Likely the attack involves asking the sites to serve up a page of search results, or some other processor-intensive requests. That makes it hard to determine if the request is a real user action or a malicious fake.

Is There Rhyme or Reason to the Attacks on Twitter?

As the title of another of Ryan Singel’s articles tells us:

Security experts say the attacks on Twitter and Facebook are nothing new under the sun and that Distributed Denial of Service Attacks — which render a web server useless to real users by overwhelming the server with fake requests, are commonplace on the net. DDoS (pronounced dee-daas) attacks are usually carried out using a zombie army of infected Windows computers known as a botnet, where the controller tells the infected computers what site to bombard with requests.

“This kind of stuff happens every day, but when it happens on Twitter, people don’t know what to do with their thumbs,” said Paul Ferguson, a senior threat researcher for security giant Trend Micro.

And so far there’s nothing to indicate there’s anything particularly interesting about the attack from a technical perspective, according to security expert Tom Byrnes, the founder of ThreatStop, a network security company.

“Taking something down on the web is garden variety vandalism,” Byrnes said. “They aren’t doing anything new … someone has a botnet and they are just pounding on Twitter and Facebook.”

Twitter, Facebook Attacks No Surprise to Security Experts

So how do we reconcile these events? The government is recommending use of social media channels for emergency notification purposes. Schools and other organizations are rapidly adopting it as a significant part of their own emergency systems. At the same time, however, disgruntled employees and political activists are focusing their efforts at bringing down these emerging communication giants, and are doing so with amazing success.

If a single hacker can bring down the Twitter and Facebook networks, what damage could be done by a terrorist organization or, perhaps one of the many rogue nations we face in our global village? We can certainly hope these social media moguls will learn their lesson from these attacks and spend more of their effort on making these networks secure. We also know that, historically, the hackers often seem to be at least one step ahead of law enforcement, network security experts, and others upon whom we rely for protection.

We have likewise read stories about illegal probing of military and infrastructure networks, including those designed to make our nuclear facilities secure. Might we not anticipate that at least some of this probing may be leading up to attempts at breaching the defenses being tested. Sure, some of this may just be teens with too much computer time on their hands, or political dissidents whose focus in on something other than world destruction. On the other hand, are we setting ourselves up for the big bang by increasing our reliance upon social media for emergency news, rather than what this media was intended for originally?

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

Did Twitter Replace Cell Phones for Ft. Hood Shooting News?

Posted in Best practices, Criminal activity, Facebook, Productivity, Social Media Tools, Social networking policy, Twitter tagged , , , , , , , , , , , , at 11:41 am by bizlawblog

For some time now, I’ve been seeing more and more articles questioning whether newer social media channels were in the process of replacing, rather than supplementing, more “traditional” means of communication. I know many of my neighbors, and a few of the lawyers I know, have replaced their traditional “land line” with cell phones.

When I moved my office to the ‘burbs a few years ago, after practicing downtown for nearly thirty years, I had to hire a third party phone company to “move” the phone number I’d been advertising on business cards and stationary. Otherwise, I was faced with losing my long-standing number, which most lawyers considered something of a death sentence in those days. The result was, until about a week ago, that I paid one phone bill just for the old number, and then paid another phone bill for my trunk service, internet, roll-over numbers, etc.

I am in the process of painfully shedding the now “fake” number. What I’ve found, in just a few, short years since I moved my office out of downtown, was that when anyone from my office called out, the recipient picked up the non-advertised, local exchange number. They often plugged that into their cell phone or office phone’s electronic “address book” and simply pushed one button when they wanted to call us. The number they dialed, ended up being the unadvertised, local exchange number. This made the “prettier,” advertised number something of an anachronistic situation, with fewer and fewer clients, lawyers, judges, and others using it.

Eventually, keeping the old number just made less and less sense, because advances in technology and the way people were using technology dictated a new paradigm. After all, we’re rapidly moving in the direction of virtual law firms and consultants. Because of cell phone technology and office automation advances, I’m using making less use of a “static” office and spending much more time, in my law practice, in my consulting business, and as a pro bono SCORE counselor, visiting clients in their offices. Since I typically pick up much more information about my clients’ need when I visit their office than when they visit mine, this is a “good thing” for my clients and me. The paradigm is moving for me, and I’m thinking I’m not alone in this.

“Way back” in August of 2009, Mark ‘Rizzn’ Hopkins’ article, posted on the siliconANGLE blog, asked the question, Could WordPress Be the Natural Successor to Twitter, Friendfeed and Facebook? As we move from Web 2.0 to Web 3.0 the borders between competing software applications and even between software and hardware are likely to blur. For now, however, the question remains, whether newer social media channels are in the process of replacing, rather than supplementing, more “traditional” means of communication. Recently, some friends on facebook responded to a comment I had made there, indicating this question might be increasingly likely to be answered in the affirmative. The very fact that I had posted something on facebook, being a relatively new user, and that there was a growing debate on this relatively new social networking channel, gives a premonition of where my thoughts on this lie.

Some pretty wise people have opined that you don’t really know a person until you see them in a stressful situation. It is then that you often have a better view into what makes them tick. The same is often true in business. What a company is made of is often not really seen until a crisis develops and they either come out on top or start a downward spiral. The same may be true of communication channels.

Sarah Needleman’s Wall Street Journal article, Entrepreneurs ‘Tweet’ Their Way Through Crises, demonstrates that businesses are starting to use Twitter and other social media to handle day-to-day crises. Needleman’s article points out:

The social-media service — where users send short “tweets” to followers who have signed up to receive the messages — came in handy for Innovative Beverage Group Holdings Inc., whose drankbeverage.com site crashed last month after a surge in traffic following a segment on Fox News for the company’s so-called relaxation beverage, which contains “calming” ingredients like valerian root and melatonin. News Corp. owns Fox News as well as The Wall Street Journal.

Innovative Beverage notified consumers on its Twitter feed that it was working to resolve the problem. The company also did a search on Twitter for mentions of the site crash, so it could respond with tweets describing its repair efforts.

Twitter gave us an up-to-the-minute ability to take what would normally be a crisis situation and make it just another event,” says Mr. Bianchi. “You can’t do that with a 1-800-number.”

As of Monday, drankbeverage.com had more than 1,000 Twitter followers.

KD Paine points out in an article on her blog, Can Twitter replace Walter Cronkite as “the most trusted ‘MAN’ in America”?, that there is a debate raging about the level of trust in the news we get these days, and, in particular whether we can trust the news and views from traditional media sources. Trust is one thing and access is another.

The horrible tragedy of the Ft. Hood shooting yesterday confirmed, for me at least, that there is a growing movement to use Twitter and other social media, rather than more traditional media, to convey news in a crisis. I heard that cell phone service essentially “crashed” during this Ft. Hood crisis, as soldiers from abroad tried to call family and comrades in the Ft. Hood area to learn what had happened. The Honolulu Advertiser‘s article, Shooting leaves 12 dead, 31 wounded reported:

The school and base were in lockdown. Normal phone lines were working but cell phones were overloaded.

“Now I can’t even get a hold of her. The cell phones are jammed. I can’t even send a text,” Biggers said. “They still have us on lockdown. I’m just staying right beside my computer with the news on and praying.”

Michael Winter’s article, A 13th death reported in the Fort Hood rampage, walks us through one version of the time line. Here’s a portion relevant to the point I’m making:

Update at 6:57 p.m. ET: Fort Hood officials are asking that family members trying to reach their loved ones should send a text message instead of calling, because phone circuits are overloaded.

Also, Twitter has three main threads for sending messages or following the story: FortHood, #FortHood and #FTHood.

Update at 6:30 p.m. ET: The Waco Chapter of the American Red Cross has a Web site where you can check on base personnel. Register here.

Eric Berlin’s article on Technorati, Fort Hood Shooting Spree: The Blogosphere Reacts, provides some insight, in terms of where all this might be headed:

The blogosphere is already responding in earnest to the horrific shooting spree at a Texas military base that resulted in 12 deaths and 31 wounded…

Twitter has become a central focus for communication, link sharing, information dissemination, and on the ground reporting during breaking news stories, so tech bloggers are looking at how Twitter is being used tonight. MG Siegler at TechCrunch speculates about how Twitter is influencing its Trending Topics feature to bring breaking news stories to the forefront immediately. “And that it may even in some way rank tweets to show more relevant ones for the topic at hand,” Siegler writes.

Twitter itself, seems to periodically question just how effective it is. An article on the Twitter Web site by Jenna Dawn, Get to the Point: Twitter Trends, even acknowledges:

As Twitter grows and the number of tweets each day continues to astound us, we’ve noticed an increasing amount of clutter in the public timeline, especially with trending topics. Trends began as a useful way to find out what’s going on but has grown less interesting due to the noisiness of the conversation.

As one cable network might say, “we report, you decide…” When the military is telling folks to try texting to get information, the Red Cross is setting up a Web site to help people check on base personnel who might have been involved in the crisis, and Twitter replaces a broken down cell phone system, I have to wonder if my original thoughts on the paradigm shift might not have been right.

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.

October 30, 2009

What Are Your Employees Doing with Social Networking tools?

Posted in Best practices, Courts and social media, Criminal activity, Employee issues, Productivity, Social Media Tools, Web 2.0 tagged , , , , , , , , , , , , , , , , at 1:47 am by bizlawblog

It seems hard to find anything these days where there are not arguments for and against the proposition under consideration. Using the words “employee” and “social networking” in the same sentence conjures up both, and often with strong opinions.

In one camp, you have arguments, such as those expressed in Rebecca Kelley’s article, Why Companies Shouldn’t Block Social Media in the Workplace. She accurately points out that allowing employees to engage in social media on the employer’s nickel, as it were, can be good for morale, and even result in great marketing for the company. Pointing out the ambivalence of many employers, she says:

Ironically, according to a study cited in the article, “94% of companies are continuing to invest in online communities and social media.” Over half of U.S. businesses block social media sites at work, yet 94% of businesses are acknowledging the importance of social media and are starting to invest in it? It’s kind of like being a retail business that doesn’t let its employees buy anything.

I’m likely biased because I get paid to tinker around on social media and networking sites, but I do think that businesses should allow responsible and periodical usage of social media at work …

Employers can learn, the hard way, how quickly this seemingly good thing can become a bad one.

Jenna Wortham’s article, Internet Protocol: Overzealous Friending and IMing With the Boss points out that “the same rules don’t apply online as they do in the real world.” Although there is an ever-increasing number of articles, such as Blaine Bullman’s 6 Benefits Of Social Networking, espousing the virtues of allowing or even mandating employee use of social media on company time and with company resources, there is certainly another side to this for the employer. While Bullnan’s article talks about employees building meaningful relationships, engaging with your target audience and finding new insights from the experience, employers must be wary of what employees might be doing with those “meaningful relationships.”

A recent NewScientist article by Ewen Callaway, Brain scanners can tell what you’re thinking about, gives us hope (or fear) that some day soon, scientists will perfect “mind reading” technologies currently in development, which neuroscientists are using to combine brain scans with pattern-detection software to “pry open a window into the human mind.” They say the benefits of this technology should include “gaining a better understanding of the brain and improved communication with people who can’t speak or write, such as stroke victims or people with neurodegenerative diseases. There is also excitement over the possibility of being able to visualize something highly graphical that someone healthy, perhaps an artist, is thinking.” Acknowledging, “it’s an idea that’s as tantalizing as it is creepy,” Callaway notes “despite – or perhaps because of – the recent progress in the field, most researchers are wary of calling their work mind-reading. Emphasizing its limitations, they call it neural decoding.”

If you think this is science fiction, rather than science:

  1. Check out my reference to William Shatner’s book in the last post on this blog; and
  2. 2. Read Colin Barras’ article, Super slow-motion camera can follow firing neurons, describing development of a camera sensor able to film action at 1 million frames per second. That means it can “capture impulses hurtling through firing nerve cells, and its resolution is good enough to film the microsecond-long pulse-like nerve signals that speed through networks of neurons at up to 180 kilometres per hour.”

Bill Gates, in his 1999 classic book, Business @ the Speed of Thought, tried to answer the question, somewhat rhetorically, “So where do you want to go tomorrow?” His answer, not surprisingly, was that, thanks to technology, the speed of business is accelerating at an ever-increasing rate, and to survive, it must develop an infrastructure–a “digital nervous system”–that allows for the unfettered movement of information inside a company.

These days, we might look at this and say, “that is so ten years ago!” If we’re at the point where we have cameras which can shoot pictures at such a slow speed they can literally capture the speed of thought, as brain neurons fire off our thoughts, we’re at least well down the path of developing a “digital nervous system.” Add to that the developing technology which allow us to engage in neural decoding, a/k/a “mind reading,” then, as Dorothy said in The Wizard of Oz, we’re not in Kansas any more.

While Rebecca Kelley’s article may say social networking employees are a good thing, others, like Jim Singer, in his article, Employee Blogging and Use of Social Media – Managing the Risk, acknowledge there can be a downside to this. Granted, there are typically ways that employers can harvest benefits while minimizing risk, but when your employees are connected to the “outside world” on a pretty much continuous basis, both at work and outside of it, there would seem to be little chance of employers not getting slammed by them periodically.

I will explore this topic in much greater depth and in all its many facets, in later posts on this blog. I hope that most employers have at least heard of some of the headaches employees can generate for their current or former employers, through their communications online. Perhaps the oldest and steadiest of these is the damage of the disgruntled employee.

Such disgruntled employees may still be working for you, without your knowledge they are, in fact “disgruntled.” Since we’re apparently still a few neurons short of a full deck on the “neural decoding thing,” we probably can’t expect management staff to always detect just how unhappy a current employee may be, but we may get an eye full after they leave.

Web sites, such as Glassdoor.com are popping up all over. That particular site, referenced by Daniel Schwartz in his article, Dirty Laundry: Airing Employee Grievances Online…And Around the World, in the Connecticut Employment Law Blog, gives us a picture of how bad this can get. In fact, to test this, I just checked Glassdoor.com, using a Fortune 500 employer one of my sons had worked for as the sample. Here are just a few of the comments I found on this employer:

  • “Maybe it was a great place once, but I hate it here now.” (technical staff)
  • “Great People, Great Ideas, but no leadership to deliver” product marketing manager
  • “really sucks no opportunity” (sales, two years ago)

No doubt, if you’re trying to recruit the best and brightest, you’ve got a problem when those folks are checking such sites before even contacting your company for an interview. It gets worse.

John Jantsch’s article, Do You Have a Social Media Non-Compete? certainly poses a very valid question. Jantsch says:

This is probably a touchy subject in some circles, but as more and more companies encourage social media participation from employees and even create job titles such as Director of Community, it’s something that marketers are going to need to deal with. Many companies have created social media policies and strategies to address things like who can represent the company and what they can and can’t say, but as companies put real faces, not company logos, on the profiles of their staff and those real faces connect and build relationships, the growing question is – who owns the content, profile and even followers?

As with most question these days regarding social media, ask a question and you’ll get a million answers. Beth Harte has one for this question in her article, Who owns your Twitter or Facebook Connections? She says:

As you know, I’ve been reviewing and questioning personal branding lately and I have one final question (or in this case, lots of questions) for you all. Quite simply, from a “You 2.0″ perspective, if you work for a company and you build up your Twitter Followers or Facebook friends from the hours of 8am-5pm (or whatever your daily work hours are)…who owns those connections made during those hours? And as you know, you don’t need to use the company network to Twitter or Facebook, so then what?

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. Even if the accounts are under your name. I mean, they paid you, right? Or is that wrong? Or is it both? What are the ethics?

Frankly, if you get to the point of even being able to talk about ethics in this situation, you’re probably ahead of the game. In my thirty-five or so years of practicing law, I’ve done quite a bit of corporate work for insurance companies. Historically, small insurance agencies become bigger companies buy buying the “book of business” of retiring or less successful agencies. In negotiating these deals, I often find my clients, and others, offering deals that would not fly in other industries.

Sometimes I find that, to make the deal work, the growing company will acquire an agency with a buy-back provision of some sort. What this means, quite often, is that the smaller agency retains some sort of residual right to the client base it brings into the acquiring agency. In case things don’t work out down the road with the “merger,” the acquired agency may very well have the right to take the client base it brought into the deal, and detach it to play the game another day, either on its own, or with another hungry, acquiring agency.

This sort of dangerous cat and mouse game is not confined to insurance agencies, but can certainly provide some college tuition for your kids if you’re one of the lawyers involved in representing the parties. One can definitely anticipate the various parties will be trying to get their best hold on the “juicy” clients during the merged period, knowing, full well, that the norm involves periodic docking and undocking from various competitors.

Sometimes it is easy to detect that somebody is playing games with you. An article too funny to let me avoid inserting it here is Michael Arrington’s Schwarzenegger Gives California Legislature A Hidden Finger.

Often, the “game” is more sinister and the results to the employer far deeper, as Carlye Adler’s article, ‘A rival stole my staff,’ indicates.

In 2004, 10 employees — or one-third of the mortgage broker’s staff — left to work for CTX Mortgage, a much larger rival. Killian claimed the employees stole 150 pending loans, worth nearly $1 million in fees, along with customer lists and boxes of confidential files. Between 2004 and 2005, Charter Oak’s revenues plummeted from more than $3.5 million to $300,000.

Charter Oak sued CTX and the 10 defectors, claiming conspiracy, unfair trade practices and misappropriation of trade secrets. Four years and some $500,000 in legal bills later, the verdict arrived in July: Charter Oak lost on all counts.

The lesson for other small businesses? Get your paperwork in order.

“Charter Oak didn’t have confidentiality agreements and noncompete contracts,” says Milford, Conn., attorney Tim Bishop, who represented Charter Oak in the original lawsuit. “They were a typical small business that grew faster than expected.”

Noncompete agreements are by their nature, essentially anti-social, in that they are designed to prevent employees and others from “socializing” with others. This would seem to be the antithesis of social networking, which, of course, is designed to facilitate folks getting together. While there certainly may be an advantage or even a necessity for employee use of social networking tools during and after work, the prudent entrepreneur must be aware of the many opportunities for mischief.

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

October 26, 2009

A Second Life for Twittering Spies

Posted in Best practices, Courts and social media, Criminal activity, Productivity, Social Media Tools tagged , , , , , , , , , , , , , , , at 12:46 pm by bizlawblog

Social networking is apparently taking on a second life, no put intended. Social networks are obviously fertile resources for spies of all sorts. In fact, Noah Shachtman reports, in an article for Wired Danger Room:

America’s spy agencies want to read your blog posts, keep track of your Twitter updates — even check out your book reviews on Amazon.

In-Q-Tel, the investment arm of the CIA and the wider intelligence community, is putting cash into Visible Technologies, a software firm that specializes in monitoring social media. It’s part of a larger movement within the spy services to get better at using ”open source intelligence” — information that’s publicly available, but often hidden in the flood of TV shows, newspaper articles, blog posts, online videos and radio reports generated every day.

U.S. Spies Buy Stake in Firm That Monitors Blogs, Tweets

One must ask, is it a good thing that government agencies, such as the CIA, are possibly monitoring the social media networks that seem to be rapidly replacing other channels as our primary method of communication? Part of the answer may come from another article by Shachtman:

Could Twitter become terrorists’ newest killer app? A draft Army intelligence report, making its way through spy circles, thinks the miniature messaging software could be used as an effective tool for coordinating militant attacks.

For years, American analysts have been concerned that militants would take advantage of commercial hardware and software to help plan and carry out their strikes. Everything from online games to remote-controlled toys to social network sites to garage door openers has been fingered as possible tools for mayhem.

This recent presentation — put together on the Army’s 304th Military Intelligence Battalion and found on the Federation of the American Scientists website — focuses on some of the newer applications for mobile phones: digital maps, GPS locators, photo swappers, and Twitter mash-ups of it all.

Spy Fears: Twitter Terrorists, Cell Phone Jihadists

Ken Monro, however, shows us another side of the impact of social networking on spies. In his article for SC Magazine, he gives us all a lesson about  what we post online. We know that colleges, employers, and many others regularly look for facebook or LinkedIn profile information before making decisions important in our lives. Typically, we don’t even know just how much they know about us before reviewing that key application for college, making a hiring decision, or attending an important business meeting with us.

For spies, this can be a life and death situation. Monro’s article even points out:

…if you’re planning on having a second identity for undercover work, it doesn’t help if your photos, friends and real name are splattered all over various social networking sites. Try finding a student at a university who hasn’t done just that.

The UK’s intelligence agencies are worried. From schoolchildren on Bebo, through Facebook-obsessed young professionals, to well-networked CEOs on LinkedIn, having an online presence is a must in this day and age. But with the explosion of social networking sites, it has become virtually impossible to find recruits who don’t have some sort of an online trail.

Pandora’s box is well and truly opened, so how do you go about suppressing your online identity?

Social networking websites make recruiting spies difficult

Let’s add another twist to this. How do spies, or anyone else for that matter, know what is real when they snoop online? Spies are, of course, trained professionals and are presumably much better at this than the average college admission office employee or Fortune 500 employer. On hand, how do we know what a potential business partner, banker, or friend might pick up about us online?

What do we even know about our current president? The title of Jason Linkin’s recent Huffington Post article, Fake Obama Thesis Story Goes Viral, Because Of Stupidity, could give us a clue.

We know many companies are under siege from disgruntled employees and competitors, sometimes without even knowing it. Faked reports about a company’s customer service or product reliability, represent an increasing form of commercial terrorism, often communicated via blogs and other forms of social media. Social media infringement on intellectual property rights appears rampant, with defensive tools lagging well behind those used by the abusers. If you don’t believe it, check out Willis Wee’s article, 10 Brands Claimed By Twitter Cybersquatters.

Where is all this leading? Keep reading. Tracking that is a primary reason for this blog.

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

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