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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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.

December 7, 2009

Wordle Word Clouds

Posted in Best practices, Social Media Tools, Web 2.0, Web 3.0 tagged , , at 6:10 pm by bizlawblog

Wordle: SociaLies Blog

This is a Wordle of this blog, attributable to http://www.wordle.net/. Images of Wordles are licensed Creative Commons License.

As the Wordle Web site says, Wordle is a toy for generating “word clouds” from text that you provide. The clouds give greater prominence to words that appear more frequently in the source text.

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 2, 2009

Is Everyone A Social Networking Expert?

Posted in Best practices, Productivity, Social Media Tools, Social networking policy, Twitter, Web 2.0 tagged , at 2:54 pm by bizlawblog

This morning, I received some comments on articles I posted. Not an unusual thing, and something any blogger longs for, presuming it is constructive. In this case, I think the comment strings rise to the level of warranting a new post here. In the inimitable word of Yogi Berra, “It’s like deja-vu, all over again.”

I’m going to risk being placed in Google’s duplicate content sandbox by cutting and pasting some of the verbiage from the comment strings described above, because I think the topic is of relatively broad concern to those involved in the social media business and to those who are wavering on whether they should likewise become so engaged.

The initial issue relates to who is or is not a social media/networking “expert,” presuming there actually is such a thing at this point. The following is a string between me and a couple of readers who already knew each other. I have redacted the name in this post, but the whole string is available in the comments to the original post. The first comment related to my post here, When Thought Becomes Reality. In particular, the comment mentioned this passage, which seemed to “tickle” the reader:

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

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

My response to the comments from the reader was:

Thanks Xxxx. If you liked finding a few moose, I wonder what the impact will be of incoming applications like Twitter’s new “Lists” feature and potential geotagging by default, mentioned in my latest post, Has Twitter Become Frightening for Halloween?

The next comment in the string was:

… I’m one of those self-anointed social media experts who just recently began offering to help organizations figure out their social media strategy. Within a couple of months, I’m nearly fully allocated to that pursuit even though I’m very open with my clients and prospects that I’m nothing more than an smart guy who knows enough about social media to steer them through the basics. I also just started setting up my first Twitter “list” right after getting my Google Voice set-up. In many ways, my life feels very much like I live it aboard the Star Trek Enterprise. Twit me up, Scotty!

My response:

Thanks for your comments.

Last Friday, I met with a new client who was starting a business (my “day job”). We went over the basics and then started to touch on the marketing plan. I asked if his plan included any “social networking” or other forms of viral marketing, either as a lead-in to the start-up, or to try to build market anticipation for his products.

When I mentioned social marketing, his eyes lit up and he said “do you know anything about that? I need that” He next asked if I knew any “experts” in that field, having just spent several weeks trying to find a real Web developer with the ability to develop a relatively large and sophisticated Web site. I went through some of what I described in this blog post.

There are certainly relatively huge opportunities for real “experts” in the social networking field and, at the same time, just as big an opportunity for business owners who are unsophisticated in their knowledge of social media but hungry for it to be taken in by scam artists who really don’t know what they are doing.

To me, this is largely an extension of the “everybody is a Web expert” era we’ve been going through for the last decade. Seems like every PR and marketing firm added SEO to their meta tags and declared themselves to be the leading Web optimization firm in the region, even if they really didn’t have a clue. I’m afraid the social networking “expert” era is just unfolding, but unfolding into a field which is continuously morphing into new forms at nearly the rate Captain Kirk’s tribbles grew in the storage areas of his “Enterprise.”

The reply:

Very good points — I guess we need to develop Caveat Emptor 2.0! However, I believe it’s worth pointing out that this is just sort of how new fields of expertise work — an area of opportunity that previously didn’t exist emerges in an unproven arena sparking an influx of players into a market which sorts itself out over time. Let’s not lose sight that the folks who eventually become “proven experts” have to start somewhere. So long as a person says, “Listen, this is what I can help you do and this is what we’ll need to figure out together…” then I think that’s the right prescription. Also, “experts-in-training” are willing to step into these emerging fields using a much different compensation model than, let’s say, a standard billing rate of $X per hour. I’d say more than a few attorneys will take cases today in areas where they know little-to-nothing about the area of law applicable to the case. The question is all in how that conversation goes with the client. The client may very well trust the general competence and integrity of the attorney to move forward knowing the attorney isn’t an expert — but is willing to become enough of an expert to be an effective advocate for the client in this particular case. If so, that attorney emerges on the back-end of the process as something much closer to an “expert” than before and the market has gained another competent competitor. How expertise emerges in new fields is a rich study, for sure, and in an interesting way, faux experts are an unavoidable part of the process.

Finally, my last response (for now):

I think you are absolutely right. Lawyers like Abraham Lincoln became “expert” lawyers by “reading the law” and working in a law office. There was no certification program on the order of what we have in this country now, with a bar exam typically divided into one segment for national certification plus a state-based familiarity segment for local jurisdictional expertise.

I actually started, to some extent, on the reading the law program, when I was admitted to law school, but had to defer my enrollment due to a stint in the military. I went to Yale’s book store and bought a few Yale Law School books on torts, criminal law, and civil procedure, and read them during the period I was in the military, just so I could try to get my mind accustomed to thinking like a lawyer. When I entered law school, I took a job with the local prosecutor’s office, and got much of the rest of what I learned during my informal educational period leading up to the formal bar exam after graduating from law school.

The social media era has dropped in on us like some of the folks Captain Kirk dealt with on Star Trek. At the risk of over working that theme, the newer version of the series and the recent movie addition comes to mind, where the human race is really first starting to explore beyond their traditional earth-bound existence. There were no real experts. Essentially everything was an experiment and performing any mundane task had the risk of turning into an adventure.

Social networking expertise seems to be something like that. We have discovered we can navigate in and around some parts of it without getting hurt too badly. It is intriguing and we want to know more. We must start to figure out the boundaries of what it can do for us and to us, and we’re currently not too sure of either. We don’t have a handy supply of well-seasoned expert guides to call upon yet, but we do have some folks who are gaining experience day-by-day. Some have and will prove better than others, so much of what consumers must do is vet the experts based upon what they have done.

I feel another blog post coming on. [One reason for the Yogi Berra comment at the beginning of this post]

Thanks for your comments.

To come full circle, the very next thing which happens to me is that I run into Andrew Ballenthin’s recent article, 5 Criteria For Qualifying Social Media Consultants. OMG!

Ballenthin says:

Finding experts in this arena should be easy right?

Without a doubt there are some very talented people that have forged their way ahead and can deliver credible business results. It’s worth asking the question though, “how do you separate professionals from self-proclaimed experts or opportunist?”

Ballenthin then goes on to list five potential criteria for qualifying social media consultants, just as the title of his article suggests he will:

1.  How many years have you applied social media in business in a results oriented manner? Note: most industries consider a novice to have less than 3 years experience.

2.  Over your years of experience, how many years were focused on your needs versus clients? Note: personal experience is an asset but often not as rigorous as a business that expects ROI (Return On Investment).

3. What have you accomplished in monetization, PR, database building? Note: follow-up with how were these results accomplished and look for clear answers.

4. What is your past business experience in the communications industry? Note: a solid business background is a good indicator of business sense for your needs.

5. What is your specialism and how has that lead to your greatest achievement in social media?  Note: social media is a broad discipline and one size does not fit all or every business.

These criteria are certainly a good start and, hopefully, something we can build on in your comments to this blog, but one thing keeps sticking in my mind:

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

It’s like deja-vu, all over again.”

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

October 31, 2009

Has Twitter Become Frightening for Halloween?

Posted in Best practices, Facebook, Social Media Tools, Twitter, Web 2.0 tagged , , , at 4:19 pm by bizlawblog

Twitter Halloween!

Has social networking come to this? I was working on the daily quota of articles for my Applied Entrepreneurship group on LinkedIn this morning, looking for Halloween related articles on entrepreneurship. I ran across a short post on The Next Web letting folks know how they could scare their friends. The article by Boris (I’m scared already), Twitter ♥ Halloween, tells you:

Google has a special logo for the occasion and Twitter supports a few extra signs. Here is a table of scary faces you can use today. Copy the codes on the left (like >o<) and paste them into Twitter. Then submit your tweet. Twitter will turn your code into an image. Give it a try and scare your friends!

8-#   =  N Cool?  Maybe.  Scary?  Not so much.

According to an article by Leena Rao, Twitter Tricks And Treats For Halloween, most people may not have figured out how to tweet using this hack correctly. What may be more frightening however is Twitter’s rapid generation of applications of all sorts, many of which are reportedly under-documented, and sometimes inaccurately registered as “live” applications.

Twitter’s “List” application may give us a premonition of things to come. Erick Schoenfeld’s article, Twitter Starts Rolling Out Lists To Everybody. Have You Gotten Yours? gives a brief description of the impact of this application and Jason Kincaid’s article, Twitter’s New ‘Lists’ Feature Finally Introduces Grouping, Offers An Alternative To The SUL gives more detail. In a nutshell Kincaid says:

Appropriately called ‘Lists’, the new feature will allow anyone to make a list of other Twitter users and label it appropriately (for example, I could make a list called ‘TC Staff’), then share that list with other members. Twitter writes that the feature is still in limited testing, but that it will eventually be rolled out to all users.

By default any lists you create will be public, though you’ll also be able to hide them. If you choose to leave them publicly viewable, other Twitter users will be able to hit a button to “Follow this list” so they can add everyone at once. This is a big deal — until now the only convenient way to start mass following people on Twitter has been to use its own curated SUL. I won’t be surprised if we see some users vying to become the best ‘list makers’, offering comprehensive lists of celebrities, news portals, bloggers, and more. It will also be interesting to see if Twitter aggregates the most comprehensive Lists and includes them as part of the signup process (which would effectively just be the SUL in a different form).

Twitter’s post describing the new feature isn’t particularly detailed, but it seems like this may have a larger impact than just discovery — it could also potentially be used for Grouping, a feature that some third party apps have offered but that hasn’t been officially supported by Twitter. In short, this will let you group the people you follow into different list (say, one for News, one for close friends, and so on), and then quickly jump between them.

Does this mean that people signing up with Twitter will have suggested groups to follow, in a fashion similar to suggested friends on facebook and LinkedIn? If so, what could another Twitter application add to the tricks and treats of Halloween news?

Scare up MG Siegler’s article, Twitter’s Geolocation API Appears To Be Live. But Most Of You Are Lost, which describes as follows:

I noticed something interesting tonight. In the new build of Tweetie 2 (not out yet), a bunch of little red location markers started appearing next to tweets in my stream. Knowing that this new version was built using Twitter’s new Geolocation APIs, I inquired if this mean they had been turned on. Sure enough, they have, developer Loren Brichter just confirmed after talking to Twitter.

But there’s a slight problem. Apparently, the reason these geotags are showing up for all tweets (even those not actually geotagged) is that the documentation was a little unclear on how to handle non-geotagged tweets, Brichter says. The result is that every single tweet is tagged with a location somewhere just off the coast of Africa, south of Ghana. Either this is Atlantis, the Island from Lost, or we have a problem.

So do we think that those signing up with Twitter will now have lists of people to follow generously offered to them by default, thus guaranteeing substantial increase in “tweets,” and at the same time giving an ability to show the geolocation of them as little red dot? I’m not sure I want to be a geotag on anybody’s screen. Now that would be frightening for some.

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

October 30, 2009

What Are Your Employees Doing with Social Networking tools?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You might not like what I am about to say here, but I believe that if a company is paying you to connect with people online on their behalf…they own those connections. Even if the accounts are under your name. I mean, they paid you, right? Or is that wrong? Or is it both? What are the ethics?

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

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

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

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

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

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

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

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

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

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

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

October 27, 2009

When Thought Becomes Reality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 21, 2009

Social Lies and Fundamental Shift

Posted in Best practices, Social Media Tools, Social networking policy, Web 2.0 tagged , , , , , , , , , , , , , at 10:18 pm by bizlawblog

“There is a very fundamental shift going on from the information Web to the social Web.” That is one of the quotes from a pair[1] of articles written by Thomas Claburn for InformationWeek during the Web 2.0 Summit in San Francisco this week.

Microsoft announced at the Web 2.0 Summit that its Bing search engine will start indexing Facebook and Twitter data. Microsoft online services division president Qi Lu, said Microsoft’s non-exclusive search deals with Facebook and Twitter to integrate real-time status updates and tweets into Bing’s search results, was “one step in many toward Microsoft’s search goal of understanding user intent, an aim he likened to building ‘a mind reader.'”

On Wednesday afternoon, Google announced it had “reached an agreement with Twitter to include their updates in our search results.”

Social Networks have caused a rapidly increasing number of legal concerns, not the least of which relate to privacy, identity theft, dilution or outright infringement on intellectual property assets, and defamation of persons and brands. This blog intends to explore and monitor the impact of this fundamental shift and social media as they relate to the legal system and entrepreneurs.


[1] Web 2.0 Summit: Bing Wins Facebook, Twitter Partnerships

 

Web 2.0 Summit: Facebook Bets On Wisdom Of Friends