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 17, 2009

Employer Ownership of Employee Social Media Accounts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 23, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 18, 2009

Can a Well-Drafted Social Media Policy Save You Money?

Posted in Best practices, Employee issues, Productivity, Social Media Tools, Social networking policy, Twitter, Web 2.0, Web 3.0 tagged , , , , , , , , , , , , , at 2:28 am by bizlawblog

Netcraft, an Internet services company based in Bath, England, reported that, as part of its July 2009 Web Server Survey, it received responses from 239,611,111 sites, an increase of around 1.5 million sites from the previous month. I’m sorry, did somebody just say Web sites are proliferating at something like 1,500,000 per month?

A glance at Technorati’s annual State of the Blogosphere report reveals equally staggering numbers of blogs, unique visits, and Facebook members. It gets better. Jim Singer’s article on the IP Spotlight blog, Employee Blogging and Use of Social Media – Managing the Risk, notes:

Social media usage is exploding.  Recent data indicates that Facebook has over 200,000,000 users, while Twitter has over 7,000,000 users.  According to Technorati data as reported on Wikipedia, at the end of 2007 more than 112,000,000 blogs existed.

Blogs, Facebook and Twitter accounts, texting, and the use of other social media by employees can create many risks for employers.  Unlike conversations, social media postings leave a data trail — and that data trail can quickly be tracked, copied, and distributed to an unlimited number of readers.  The news headlines are filled with stories of poor judgment by employees on social media sites.  Microsoft fired an employee who published photos of Apple computers being loaded into a Microsoft research facility.  Delta airlines fired a flight attendant who posted photos of herself in a corporate uniform.  Google fired an employee who blogged about, among other things, Google’s compensation.

Singer summarizes employers’ risks from their employees’ social media activity as including:

  • publication of trade secrets;
  • dissemination of confidential information relating other employees, customers, or business partners;
  • copyright and trademark infringement;
  • libel; and
  • loss of control of business reputation

The problem for employers seems to be that they’re damned if they do and damned if they don’t. As marketing mavens turn from paper media, to Web, to blog, to Twitter campaigns and beyond, their corporate clients are feeling the pinch of a currently unfathomable economic slowdown, necessitating a higher ROI from potentially declining marketing budgets. One apparently easy answer may be to enlist and unleash employees with their low cost or no cost viral marketing abilities.

Although an instant army of marketing employees may seem a simple solution, Fred Abramson points out in his article, What you need to know about Defamation and Web 2.0:

Bloggers and anyone else using social media need to be aware of what they post online.  There is a serious threat of what you post can result in litigation.

I recently reported that there has been a 216% increase in libel lawsuits against bloggers.  Courtney Love’s Twitter defamation case is not going away.

Yelp, the popular review site, has been at the center of the debate because people are using the service to write reviews that are untrue.

A $1 million judgment, including an injunction and costs was granted against a defendant who persisted in posting false and defamatory statements in online forums regarding his fraudulent transactions at the expense of an online company.

OK, so maybe a little “sensitivity training” might be in order before unleashing the hordes of marketing hounds, but what if they turn on you? Deloitte LLP’s 2009 Ethics & Workplace survey indicated that:

60 percent of business executives believe they have a right to know how employees portray themselves and their organizations in online social networks. However, employees disagree, as more than half (53 percent) say their social networking pages are not an employer’s concern. This fact is especially true among younger workers, with 63 percent of 18–34 year old respondents stating employers have no business monitoring their online activity.

That said, employees appear to have a clear understanding of the risks involved in using online social networks, as 74 percent of respondents believe they make it easier to damage a company’s reputation.

With the explosive growth of online social networks, such as Facebook and Twitter, rapidly blurring the lines between professional and private lives, these virtual communities have increased the potential of reputational risk for many organizations and their brands…

Could it be that lawyers may have the answer? Kate Early, corporate counsel for LexisNexis posted a nice article on her blog, “Social Networking Helps Cut Company Legal Fee Costs – How? Read on!”, which may give you a clue where I’m going with this. She notes:

Social networking is helping companies…cut legal fees by providing groups and forums for them to discuss and share ideas and answers to legal questions for free.  For instance, on Linked In, there are topic groups that you can subscribe to, like Intellectual Property.  You can then post questions and answer other people’s questions.  Human resources professionals are also benefiting.  Of course, there are issues about the lack of attorney-client privilege and there is no privacy to the questions.  However, for general inquiries that are not private … these sites can really help.

Neetal Parekh’s article, Legal Cost-Cutting and Social Networking: Strange Bedfellow, goes a little deeper:

Breaking down the buzz word “social networking” you get two core concepts of communication.  Social and networking.  Whether you are in a conference break-out session, happy hour, basketball court sideline, or company luncheon you have an opportunity to interact with others in a less-formal, more-personal way.  Similarly, social networking allows a candid flow of thought and exchange of ideas.  Just like your career counselors encouraged you to do in law school in their odes to the power of networking, connecting and sharing online is a form of networking.  And one that seems to be gaining some street cred from its offline cousin.  And though three years of legal training has drilled in considerations of liability, privacy, and confidentiality, it is up to the innovative devices of in-house counsel to find constructive and ethical uses of social networking that will inspire progress and productivity within their legal departments.

Woody Allen is quoted as saying: “Eighty percent of success is showing up.” Many of the financial advisors I’ve talked to in recent months, as well as wealthy clients, seem to be saying the same thing about survival in our depressed economy. Their goal, rather than making money, often focuses on not losing as much as anyone else. In the final analysis, they speculate (no pun intended), if they are able to keep from losing more of what they have than the competition loses, they’ll still be ahead of the game when things turn around, as they always do.

The depth of “expertise” of most social media consultants must be subject to scrutiny. After all, the field itself is still emerging and changing by the second. We’re all just starting to explore this murky new territory. The maps we draw for our clients to follow may sometimes be no more useful than a sandcastle built too close to the ocean surf.

Given the shifting sands on which we stand, our greatest success may come from simply failing to make as many mistakes as our competitors, and, as Woody Allen suggests, staying around for the next act.

We may not have a firm grip yet on what really works in the universe of social media. We are quickly learning, however, what doesn’t work, and how large the judgments, legal fees, and lost profits can be when we make easily avoidable mistakes. It is the avoidance of those mistakes that a well-formulated, organic social media policy can easily prevent. A good policy can encourage the cost saving benefits corporate lawyers have already found.

This is far from a perfect solution or tool, but the process of creating a social media policy for your company, getting employees and managers to buy into the process and become stakeholders in the positive results it can bring, can go a long way to making your company one of the survivors. That may be enough to make you the victor in your arena. I’ll explore this process in a future series of posts on this blog.

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.

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 27, 2009

When Thought Becomes Reality

Posted in Best practices, Courts and social media, Employee issues, Productivity, Social Media Tools, Social networking policy, Web 2.0 tagged , , at 1:10 pm by bizlawblog

The first post on this new blog, Social Lies and Fundamental Shift, seemed to proclaim we were experiencing a fundamental shift from the “information Web” to the “social Web.” The inference was that this was significant in some fashion. I guess that depends upon how you look at things, literally.

Some of us are old enough to remember spending hours in the library looking up information in books and periodicals. That may be a fading image, since an increasing number of studies, such as one by Publishers Communication Group, E-books in 2008; Are librarians and publishers on the same page?, indicate librarians are now more seriously considering the return on investment  from e-books and other electronic media vs. traditional print media, when preparing their budgets in these financially troubled times. It would seem the title tells the story. There are certainly many stories in the news about long-standing publication giants, who are folding their tents as readership and revenues sink.

One other side of the shift seems to be in the area of instant experts on use of social media as a business tool. I can’t recall any profession, including Web optimization experts, growing as quickly as the number of self-proclaimed social Web experts. Perhaps this is because of my own foray into this area. They say, “if you want to shoot a moose, you have to go where the moose are.”

Frankly, I seem to be surrounded by moose, but can’t remember how I got here. Social media experts seem to surround me wherever I go. No matter what I search for online, I run into “experts” in this area.

One of the things, which has drawn me into the realm of social media, is the number of my business start-up clients who are using social media tools, such as facebook, as a major part of their business plan.  A year ago, this was not true. There may have been a few who mentioned it in passing, but these days, a substantial percentage of start-up clients seem to be counting on their ability to market their business to a large group with little outbound cash flow, using facebook and other social media.

I’ve been practicing law long enough to remember the era when many clients came to me thinking that successfully registering a “cool” domain name was a business plan. Granted, that was before most of our current cyber squatting laws, and well before the tech bubble burst. To my chagrin, some of the clients who had been subjected to my lectures about the usefulness of a real business plan, actually made substantial sums of money just by getting a particular domain name registered sans business plan. They were few and far between, and for the most part, their “fame” was fleeting. This was clearly not a sustainable competitive advantage for them, even if they managed to cash in to some extent.

Although the results are far from certain, there can clearly be some merit for retailers and others, using social media channels to market their businesses. I’ve even started recommending it myself, if my clients don’t bring it up. The information on how to do this is easily available and simple to follow, as indicated by Mark Ijlal’s handy article, How To Set Up A Custom Landing Page For Your Business Facebook Fan Page.

Of more interest to me in writing this blog, is what happens when use of social media becomes embedded in business operations. It seems inevitable this will happen, at least until the next paradigm shift. Michael Specht offers a fair argument for this in his article, Social Media In the Workplace:

Remember your employees are using these tools even if you don’t realise it. They have it at home, on their phones everywhere.

Add to this that the workplace is changing. Those crazy Gen Y’s will make up 42% of the workforce by 2020, let’s not even begin to think about to (sic) ones behind.

My understanding of part of what the “experts” predict will happen, as Web 3.0 replaces Web 2.0, is that the current borders between what one thinks and what happens will start to blur. In other words, thought starts to become reality. Is this science fiction, or simply the natural progression of the current path we’re on?

One of my favorite science fiction works is Forbidden Planet. This 1956 movie by Fred Wilcox takes place in the 23rd century and starred Leslie Nielson decades before his appearances in the Naked Gun and Scary Movie series. The plot of Forbidden Planet involves rescue of an archeological team from a distant planet, where the highly advanced, native Krell population had mysteriously died out in a single night. At the risk of spoiling the movie if you’ve not seen it, the Krell developed a huge machine, which was able to turn their thoughts into material objects. Unfortunately for the Krell, one of these turned out to be a monster from the id, later conjured up by the subconscious activity of one of the stars of the movie.

The stars of the movie experimented with a training “toy,” apparently designed by the Krell to help improve their mental focus. Not necessarily coincidentally, I just saw a version of this toy in a catalog yesterday, although the reference was to a Star Wars Jedi training device. What this brings to mind, aside from science fiction authors “borrowing” ideas from each other, is a book by another science fiction star, William Shatner, I’m Working on That : A Trek From Science Fiction to Science Fact.

Shatner’s book points out the cyclical relationship between science fiction authors and science. Many authors study emerging technologies and philosophies about “what’s out there,” in order to come up with ideas or make their fiction more believable. On the other hand, some scientists and entrepreneurs seem to be able to cash in on science fiction by making the “fiction” a reality. The “communicator” device used in the Star Trek series on TV, which made Shatner famous, seemed to morph into our cell phones. Shatner recounts a number of other current “every day” devices, which can attribute their origins to his TV program.

I’m old enough to remember a time when my secretary used a typewriter. I’m also old enough to remember a time when I didn’t know how to use a computer and was actually afraid to try to learn, yet here I am blogging away with no visible means of support (a danger for much of the Web 2.0 generation without an alternate stream of income). In my case, the reference, fortunately, is to the lack of need for any support staff to type this, something not possible for me a decade or so ago in those ancient “pre-Web 1.0” days.

I started learning how to use a computer after reading an article in the local paper, which talked about a major law firm in the area buying hundreds of computers and “forcing” everyone to become familiar with how to use them. The inducement for the lawyers was that they had to start filling out their time slips “online,” whatever that meant, or they didn’t get paid. I understood getting paid, and if they were doing it, I wanted to do it too!

A few years ago, if we wanted to record something important, like a legal document, we had to type it, or find somebody who could. My worst grade in high school was in typing class, which was an “elective” course my mother thought I should take. What a pain. I was a horrible typist, and when I passed the bar exam and hung my “shingle,” my secretary was the only one creating the final version of important written communications. Granted, I might create and edit, but she was the only one capable of working the magic needed to produce a final version fit for publication.

Then came machines that could “remember” what we had typed, so this information could be stored and used again without retyping it. This turned into document assembly and database mining, as well as many other “advanced” techniques. We became more productive overnight.

Within a relatively short time, some smart folks came up with the idea of turning speech into text. At this point one hardly had to “think” at all to turn thoughts into words, not necessarily a good thing. Typing was more deliberate, but speech recognition programs like Dragon Naturally Speaking, allowed our thoughts to roam as we drove to court or a business meeting. Shortly upon this technology maturing to the point of usefulness, we could use it to send e-mail and other communications using voice recognition. We not only became more productive, we became more prolific, once again, not necessarily a good thing.

The impact of our thoughts, including the physical trail they left, was growing rather than shrinking. The number of our “published” thoughts was also increasing at a tremendous rate. This, however, appears to be just the tip of the iceberg.

Web 3.0 promises to make such “gadgets” universal and “seamless,” to borrow an overused term. One must admit there has been a major paradigm shift, from trying to get one’s secretary in to type or retype a letter a decade ago, to the current use of self-posting blogging tools and ability to twitter to the world from anywhere in the world. Web 3.0 promises to make this available to everyone in a fashion they won’t even notice, and it is happening before our eyes and behind our backs.

Now, when getting ready for a meeting or to conduct voir dire of a potential jury, I am “required,” as Nicole Black points out in her article, Can Lawyers Afford to Ignore Social Media?, to spend some time investigating the background of those whose faces I’ll be seeing in a few minutes. What they will tell me is one thing, but I now have a rapidly increasing ability to determine what is on their mind, even if they don’t realize it themselves. While they interact in a business meeting, or respond to questions from a trial lawyer about potentially disqualifying prejudices against a party in litigation, the person on the other side of the table has an opportunity to look into their facebook or LinkedIn profile, to discover what really interests them.

Sina Odugbemi’s article, The Assumptions of the Social Media Community, seems to cast some doubt on the extent to which this shift from the Web 2.0 to Web 3.0 world will impact us.

We get told that new social media tools will destroy all others, life will change beyond recognition, mass media is ‘legacy media’, about to go the way of mastodons.

Eric Newton of the Knight Foundation – an amazing digital migrant who has gone native to a brilliant degree – summed up some of the questionable assumptions of the social media community thus:

  1. Everyone has access to new media. (And we know that is not true, especially in developing countries.)
  2. Everyone has goodwill and will not harm others.(We know that is not true because some pretty bad people use new media to pursue evil ends.)
  3. Everyone can correct each other. (We know that is not true because education levels vary, ignorance persists on the Web, information access varies etc.)
  4. Everything is transparent. (We know that is not true because manipulation goes on, identities get hidden, advertisers make bloggers support products without owning up to being paid and so on. See “Truth in Advertising, Offline or Online”.)

The point, of course, is not to knock social media, but to suggest that all the mechanisms that shape the public sphere need cool analysis in order to manage inevitable complexities. Every new technology throws up ethical and governance challenges, and these need to be frankly acknowledged and managed.

The cool analysis seems to me to be the key, and, hopefully, part of the mission of this blog. As we focus on the minutiae, in order to conduct this analysis, it also seems apparent that we must try to detect the larger impact. For starters, twittering and texting teens will become the leaders of our Fortune 100 companies in the not too distant future. Interpersonal skills have transformed for both the better and the worse, in my humble opinion, due advances in technology. Communications are clearly much more rapid and far-reaching. Did I mention this is not always a good thing?

The ability to use and abuse these tools grows more powerful at a tremendous rate. Who has not pushed “send” on an e-mail that was not finished, or perhaps contained something we wished we could take back? Who has not accidentally overlooked someone who accidentally received a private or even confidential electronic communication, simply because the sender forgot they were “CCed” on the e-mail?

Lawyers are trained to be the most sensitive people on this planet, to the accidental or unauthorized disclosure of confidential information, yet the stories grow about even these guardians of confidentiality breaching the walls. What hope do we then have that our employees, and perhaps our CEOs will be able to keep the genie in the bottle, or at least direct this new power better than the Krell of science fiction lore? Watch the movie and you might see our future.

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