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.

December 1, 2011

Social Media Forensic Resources

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

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

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

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

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

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

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

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

June 23, 2011

Man Working

Posted in Uncategorized at 2:30 pm by bizlawblog

I always love passing by a road crew, to watch one person working while three watch. Having been the one person in the hole with a shovel actually doing some work, I thought I’d at least let you know I am at work on the next post here. I feel that may be particularly important after my long absence.

Camouflage class in New York University, where men and women are preparing for jobs in the Army or in industry, New York, N.Y. They make models from aerial photographs, re-photograph them, then work out a camouflage scheme and make a final photograph (LOCphoto © 1939 The Library of Congress | more info (via: Wylio)I also wanted to let any surviving readers know that I have just updated the Excel spreadsheet, which you can find and download from the box.net app at the bottom of the right hand column of this blog. The reason this may be noteworthy, is that I’m trying to cultivate it as a tool for you.

I started this Excel sheet a couple of years ago, when I was posting/curating so many articles on social media that I often couldn’t tell if I’d already posted them someplace when I ran across one I thought was particularly worthy of republication on my LinkedIn group, Social Media Search and Forensics, on my Twitter feed, or elsewhere. I didn’t want to repeatedly republish such an article, so this was an internal tool for me.

When recently working on some seminars I’m doing on social media for lawyers, I went back to this resource, and thought that if I updated and improved it somewhat, it might actually be a tool of some value for those searching for articles on social media. To that end, I’ve started (but certainly not finished) updating it. I’ve also added some columns to make it easier (hopefully) to find articles, ethics opinons, court decisions, white papers, and other materials.

I’ve just passed 600+ sources on this list, so if you need to find something, such as articles on jury misconduct involving social media, you may find this spreadsheet of some value. I’m also looking for feedback, such as that recently donated by my new social media friend, Shawn Tuma. I’ve followed Shawn for a while on Twitter and on his blog, and often reposted valuable material I found there. He was also kind enough to leave me some comments on our mutual problem of more efficiently bookmarking the material we run across, as we research technology and social media issues for our clients and our various online publications. I think we both are looking for some true, Web 3.0 type help from readers who may, collaboratively, be able to help all of us sharpen the tools we use.

In any event, I should be posting a new article here soon (working title is: Are Judges Starting to “Get” Social Media?) and hope you’ll be able to find some interesting articles in the attached Excel spreadsheet.

June 17, 2011

Social Media and the Future of the Legal Profession

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 15, 2011

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

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

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

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

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

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

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

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

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

December 13, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 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 5, 2009

Social Networking in Person. What a Concept

Posted in Best practices, Uncategorized tagged , , , , at 2:27 pm by bizlawblog

I’ll post more on this later. On my way to give a talk with Constance Ard on social networking for lawyers, but here’s what I was doing last night.

The Seed 2020 was a great event as told by friend and sponsor, Steve Arnold, of ArnoldIT fame, on his blogBeyond Search:

http://arnoldit.com/wordpress/2009/11/05/louisville-meet-up-lights-up-ali-center/

Meeting keynote speaker, Dr. Emeka Akaezuwa’s, and listening to his story was a humbling experience. Something I can always use.