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.

November 15, 2009

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

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

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

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

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

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

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

University Links Twitter, Facebook with Notification System

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

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

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

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

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

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

Governments use Twitter for Emergency Alerts, Traffic Notices and More

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

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

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

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

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

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

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

Twitter Iran delay ‘not forced’

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

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

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

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

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

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

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

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

Denial-of-Service Attack Knocks Twitter Offline

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

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

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

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

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

Ongoing denial-of-service attack

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

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

Don’t Rely Only on Twitter for Emergency Notification

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

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

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

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

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

They don’t make any sense.

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

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

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

Is There Rhyme or Reason to the Attacks on Twitter?

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

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

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

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

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

Twitter, Facebook Attacks No Surprise to Security Experts

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

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

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

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

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

November 6, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 30, 2009

What Are Your Employees Doing with Social Networking tools?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 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.