June 17, 2011

Social Media and the Future of the Legal Profession

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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June 15, 2011

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

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

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

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

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

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

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

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

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

May 27, 2010

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

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

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

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

Granted, there are statistics indicating:

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

These statistics come from Facebook.

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

These statistics come from LinkedIn

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

These statistics come from the Huffington Post

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 24, 2010

Social Media Best Practices

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

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

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

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

Social Media Practices, in General

Social Media for Business

Blogging

Facebook

LinkedIn

Twitter

Filtering and Accelerating Social Media Monitoring

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

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

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 30, 2009

My Big Fat, Geek Thanksgiving; Web 3.0 Takes Over

Posted in Best practices, Facebook, Productivity, Social Media Tools, Social networking policy, Twitter, Web 3.0 tagged , , , , , , , , , , , , , , , , , , , , , , , , , at 1:01 pm by bizlawblog

I sometimes live on the bleeding edge of technology. Some like to call this being an “early adapter.” Others think I should join a support program with a twelve-step program. My office has a room devoted to hardware and software I’ve bought, tried out, experimented upon, recommended, and sometimes even installed for my consulting company clients, including quite a few law firms.

When I built a new house a few years ago, I just had to investigate the new energy conservation devices, which could lower my utility bills, reduce my “carbon footprint,” and save the world. Likewise, I just had to experiment with design of home theatre and security system wiring, and the home computer network itself. I sometimes chatted about these with others in the neighborhood who were building houses, but didn’t mention one “enhancement” I had secretly worked on.

As the house was being built, I realized it would be more cost efficient to do all the wiring I would ever need, up front, rather than piece-mealing it later. I had been reading about the strides toward creation of working “smart houses” and other Web 3.0 applications, so I decided to make an investment in the future.

I worked with the various vendors installing my alarm system, home theater, cable, phone and other electronic systems, and got them to lay the groundwork for me. Then, being the bleeding edge geek I am, I began my own tinkering, gradually adding new components, as they entered beta stage. Fortunately, one of my clients is an appliance company, so I was able to make some relatively good purchases and get great deals on some important components.

When Thanksgiving came up on my calendar this year, I decided it was time to give the new system a trial run. I really wasn’t ready for a full-blown trial run, but one of my sons knows a lot more about this stuff than I do, so I figured if I got some of the system up and running, he would be in town at Thanksgiving to give me a hand debugging the parts.

This was also going to be the first year with multiple grandchildren, in addition to some of our friends who had become annual Thanksgiving dinner guests. That meant we had to get out the extra leaf for the dining room table, but it really meant the logistics were starting to add up to the point of being almost unmanageable. The question was whether or not I somehow pull off this Web 3.0 Thanksgiving plan in time to really help.

I got out my copy of Microsoft Project and went to work. This had to be a collaborative effort and, fortunately, seemed to be an interesting challenge for the partners in the project. Admittedly, I felt a little like Chevy Chase in one of my favorite movies of the season, Christmas Vacation, trying to pull off wiring the house to win the neighborhood Christmas lighting prize, but eventually, I finished and it was time to send out the invitations.

I decided to start with an old favorite, evite®, so I could at least try to track who would really be coming and send guest updates in a burst. It also helped get a few other issues out of the way early, such as special dietary concerns of some of the guests, coordinating menu items for those who always insist on bringing Aunt Tillie’s famous recipe, etc. I know there are lots of invitation applications out there, but since I’ve used evite® for many events and was familiar with the foibles and periodic “surprises” as it continues to develop, it was an easy choice for alerting guests to “save the date,” and then to harvest the data as we got closer to The Big Day.

Like many American families, we have established some traditions over the years. That meant timing of various parts of the event had to be precise. With folks arriving at various times, subject to last minute variables, this was always a challenge. I thought it would be interesting to see if a preview of a Web 3.0 world would be any better.

Once the first round of evite® responses started to come back and we had our first estimate of the number of guests and basic menu, I was able to get some online counsel for wine pairings with the various dishes, estimate the number of bottles needed, and place my order. One task completed.

About the time we were building our new house, I happened to read Christoper Allbritton’s story in Popular Mechanics, Control Your Appliances Over The Internet. I tried to remain mindful of Albritton’s reference to the “Terminator” sci-fi movies, and scenario where the  fictional military artificial intelligence defense system, Skynet, takes over for humans and then starts to eradicate them as a potential threat. Since my plans didn’t include any air-to-ground missiles, I decided that LG Electronics’ HomNet was a good place to start. After all, their home page says:

LG HomNet is the total home network solution providing a convenient secure, joyful and affluent lifestyle anywhere and anytime with the integration of various digital home appliances. LG HomNet makes the future lifestyle into reality. LG HomNet will usher into a future lifestyle that used to be possible only in the movies and the imagination, together with ultra-high speed Internet, artificial intelligence, and advanced robots.

LG HomNet, a home network system developed by state-of-the-art technologies from LG Electronics!

You will be provided with a new pleasant and convenient digital living culture of the 21st century through intelligent networking of all-digital appliances, agnostic to any wired and wireless communication technology.

We invite you to a new living culture which has been dreamed about by the whole human race.

Aside from the grammatical issues in LG’s statement, and hoping their use of the term “agnostic” was meant to be closer to the original Greek, as opposed to the more recent religious interpretation, who could resist something, which would provide a convenient, secure, joyful, and affluent lifestyle, anywhere and anytime? Not me.

After taking the HomNet Experience online, I started with the refrigerator/server, adding the ovens, microwaves, and some other appliances in the kitchen. This proved a handy way to coordinate keeping foods chilled, cooking the hot foods, timing the warming of those foods in the food queue, and even providing a shopping list tied into the menu archive, and the family calendar, which is always visible on the door of the refrigerator. This was also great to avoid the previously inevitable, last minute return trips to the grocery for an item that didn’t make it on the old paper grocery lists. Now we could take remote inventory from the store, to make sure we really had walnuts for the dressing or enough whipping cream for the pie.

Once the big day came, we could actually sit back for the first time, and just wait for last minute evite® updates on arrival times. Granted, as James Gunter points out in his law enforcement blog post, Twitter is Not the Holy Grail of Emergency Notification, using Twitter alone as an alarm system is dangerous, but if only the turkey is at state, this may be sufficient. With our Twitter early warning system tied into the day’s calendar on our refrigerator, we were notified, in order, that: our oldest son and girlfriend were on their way; younger son and new grandchildren would be slightly delayed, due to a diaper change; our daughter’s friends would have to make a stop to pick something up on the way; and my old law firm partner and family would be here “soon.”

“Soon” always had a special meaning for my old partner’s arrival, but having done an earlier blog post on the Twitter Geoloction API, I had convinced him to start “tweeting.” With a little advanced coordination, I was able to tell they had not left home yet, was alerted when they started to move in our direction, and a new ETA appeared next to their family avatar on our handy refrigerator/server/message center. Our voice recognition system and data-to speech-program even announced that guests were arriving, making those already inside our “smart house” feel like they were early guests at a presidential ball, where dignitaries are announced as they enter. This was particularly helpful in marshalling the troops to help get the new twins inside before the fresh air woke them up.

Really Cool, New Sixth-Sense Technology was the pride and joy of my new system, even if it was still a beta version. The cobbled aggregation consists of off-the-shelf, Web cam, portable battery-powered 3-D projection system, and other devices connected to the user’s cell phone. The system’s ability to project keypads and other tools onto any surface, to make it a device like those used by Tom Cruise in Minority Report, proved very helpful in the game room. The RFID tracking system allowed us to locate the kids who were tardy in departure from the media room, turning down the heat in that room during dinner, and returning them to the appropriate spot in the movie they were watching upon their return.

We were able to use all this technology to time when dinner started, so the parents of the little kids enjoyed the rare treat of being able to eat in relative peace, coordinating with nap and infant feeding schedules for that optimal state of “joyfulness” promised by the appliance company. It also allowed us to finish before the preselected football games appeared on the adult’s monitors, cartoons came up for the tikes, and video games for the rest of the younger kids.

The background music, which gradually came up as we sat down to eat was a nice touch, as was the list of conversation points, which appeared in the wireless 3D i-glasses some had elected to wear. The ability to look through the glasses at a guest, allow the facial recognition and identification system enough time to identify the guest, and then call up conversation topics suggested by their Facebook references, and other social media search results, including their blogs, proved interesting, if not a little too revealing for some.

The great meal now being history, we can review the video record of the whole event to work on ways to improve it for next year. Using the facial recognition and identification system, we can piece together the level of “joyfulness” for each family member and guest, item-by-item, and plug these back into project software to start planning next year’s event.

The transportation alert module paid off in the first year, letting my oldest son and girlfriend know the system was well on the way to rerouting them back to Chicago, due to a snow storm interrupting their original plans to fly back into O’Hare. The placemats, inspired by some iPhone apps,  allowed us to check just how much food each family member and guest had consumed, and for those who desired it, their iPhone apps would now “remind” them of the exercise plan the system had outlined to return them to normal size, including, of course, the appropriate level of play on their Wii Fit™ system at home.

Now, on to Cyber Monday Shopping.

__________________________________________________________

Apologies to Berners Lee, whose article, The Semantic Web, in a 2001 edition of Scientific American, gave rise to this story. Lucy, in the original story, instructed her Semantic Web agent through her handheld Web browser to conduct a search which started to define the term, Web 3.0.

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.

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