Social Media and the Law


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Social Media and the Law

  2. What is social media?
  3. Rule of thumb: If you don’t use it, don’t practice it.
  4. Becoming a Digital Citizen
  5. We are beta testing the global power of the socialweb.
  6. We are in the alpha phase with the law and howit will manage, shape and react to the socialweb.
  7. social media... ...yea How to Effectively Use Social Media as a Lawyer
  8. Twitter Issues:TrademarkAbuse Issues- Unwanted InteractionThe 140 Character Attorney-Client RelationshipFollowing the Right PeopleSharing Relevant InformationAttracting Clients Without Giving Counsel
  9. Tumblr/Blog Issues:The Comment Roll (Troll)Co-Blogging Issues (Copyright)Consistency of Useful Content
  10. Quora Issues:Answering direct legal advice questionsDisclaiming your interaction on the site
  11. Facebook Issues:TrademarkCopyrightLikes, Comments, Pokes
  12. talking about my reputation What You Can and Can’t Do With Online Reviews
  13. Defamation.
  14. The “Case”:Review about Legal Eagle, Esq.- “undereducated”- “ill prepared”- “exorbitant cost”
  15. You cannot sue over opinions.
  16. Better question: Do you want to sue? (especially in California)
  17. ANTI-SLAPP laws
  18. ANTI-SLAPP laws Alternatives
  19. the game plan How to Effectively Use Social Media as a Lawyer
  20. Tips for Using Social Media WiselyDesignate someone to manage social mediaDecide who does and doesn’t get to use itMaintain a scheduleMake it a habit, something you enjoy
  21. Tips for Monitoring Employee Social Media UseLegallyNLRB DecisionsApply offline principles to the online world
  22. Tips for Monitoring Employee Social Media UseLegallyThere is no federal law that specifically prohibitsemployers from monitoring employee socialmedia use.
  23. Tips for Monitoring Employee Social Media UseLegallyIssues arise with the time and place of the socialmedia use, personal v. firm accounts.
  24. Tips for Monitoring Employee Social Media UseLegallyEmployer PhonesPersonal PhonesEmployer ComputersPersonal Accounts
  25. Tips for Monitoring Employee Social Media UseLegallyRecent CasesStengart v. Loving Care Agency (2010)Holmes v. Petrovich Development Company LLC(2011)Sitton v. Print Direction, Inc. (2011)
  26. ?
  27. uncharted legal territory Privacy
  28. Distinguishing Fourth Amendment from privacyin the civil sense.
  29. Electronic Communications Privacy Act
  30. Personally Identifiable Information (Pii)
  31. “Personally identifiable information” is information thatidentifies a particular person. “Pii” includes: • Full name; • National identification number; • IP address; • Vehicle registration plate number; • Driver’s license number; • Face; • Fingerprints; • Handwriting; • Credit card numbers; • Digital identity; • Date of birth; • Birthplace; and • Genetic information.
  32. Data collection: Obvious v. Inferential
  33. social networking platforms = corporate-createdlegal regimes Privacy
  34. Problem #1: The laws around data reside inindustry silos.
  35. Problem #2: They aren’t getting it in DC.
  36. Silicon Valley, Alley, Beach > DC
  37. Ok, I do have some <3 for the FTC.
  38. Problem #3: This isn’t going away.
  39. Privacy policies and practices in their currentincarnation are not working.
  40. Geolocation
  41. Recent Supreme Court Development: United States v. Jones
  42. regulation...or attempts thereof Privacy
  43. Few pieces of key legislation: Do Not Track Act Commercial Privacy Bill of Rights Act of 2011 Personal Data Privacy and Security Act Secure and Fortify Electronics Data Act (SAFE) Data Security and Breach Notification Act
  44. FTC Action Opting Out = ScanScout Children’s Privacy = SkidKids
  45. Regulation stymiesinnovation and economic growth.
  46. Self Regulation stymies innovation and economic growth.
  47. Voluntary implementation just seems smartand frankly less cumbersome than a federal orstate-by-state legal regime.
  48. We can work to create a marketplace thatrewards “privacy by design” while promotinginnovation.
  49. commercial issues Blogging
  50. FTC Disclosure Rules
  51. 5 Quick Tips OverviewTestimonials with atypical results - must disclosewhat is normally expectedBloggers who are paid to make endorsements mustdisclose itMust disclose connections between research &advertiser if using a research reportPaid endorsements deceptive if they make false ormisleading claims.Advertisers & endorsers liable for false orunsubstantiated claims
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  53. avoiding “Oh S**t moments”(or advising clients through them) Liability Issues & Social Media
  54. Two behemoth laws regulate user-generatedcontent: the DMCA and the CDA.
  55. DMCA = Intellectual PropertyCDA = Defamatory Content
  56. Both laws stem from the need to provide someshield to ISP’s from the actions of their users.
  57. DMCA = Intellectual PropertySafe Harbors512(a)- Safe harbor “for infringement of copyright by reasonof the [ISP’s] transmitting, routing, or providingconnections for” infringing material.512(b) – Safe harbor that provides immunity for systemcaching512(c)- Safe harbor that provides immunity for informationresiding on the ISP’s systems at the direction of users512(d)- Safe harbor that provides immunity for informationlocation tools such as search engines.
  58. Names you have probably heard associatedwith the DMCA:YouTubeBitTorrentThe Pirate Bay
  59. When the law gets complex:Sampling and Mashups
  60. CDA = Defamatory Content (generally)Section 230 of the Communications Decency ActGeneral Rule:If a website is involved in any way in the creation ordevelopment of the information, they will likely beconsidered an “information content provider.” Theseopens them to liability.
  61. CasesFraley v. Facebook, Inc.Zango v. Kapersky LabDoe v. MySpace
  62. Cybersecurity
  63. CybersecurityData BreachState Level ComplianceFederal RegulationRegulatory Efforts by White House and Dept. ofDefense
  64. Federal RegulationComputer Fraud and Abuse Act (CFAA) Perpetrating crimes on a computer
  65. Minors
  66. MinorsChildren’s Online Privacy Protection Act“Cyber” BullyingBinding Contracts
  67. Children’s Online Privacy Protection ActRequires websites to get parental consent beforecollecting or sharing info for children under 13Enforced by the Federal Trade CommissionApplies to commercial websites and other onlineservicesIf you know you have minors on your site, closethe accounts
  68. Children’s Online Privacy Protection ActRegulates all types of identifying informationExemptions: electronic postcards, contests, onlinenewsletters, homework helpExample: Disney’s Club PenguinIf you know you have minors on your site, closethe accounts
  69. Children’s Online Privacy Protection ActTo comply: Post a privacy policy/advise whenever personal information collected Parental notice, consent, access to information Can’t condition participation on providing more info Confidentiality & security of information collected from children
  70. “Cyber” BullyingDefinition: Use of the Internet and other technologies to harm other people through deliberate, repeated and hostile behavior
  71. “Cyber” BullyingLegislative Attempts in CA: AB 9 “Seth’s Law” AB 1156 Definition of Bullying AB 746 Student Behavior on SNS Sites SB 719 Bullying Prevention for School Safety and Crime Reduction Act of 2003 AB 86 (2008 Code) Pupil Safety
  72. “Cyber” BullyingSupreme Court Declines Intervening: Metes and bounds of school’s authority in these situations
  73. Binding Contracts So many contracts online & so many minors
  74. stay outta trouble Ethical Issues for Attorneys
  75. ETHICS!Attorney-Client Relationship FormationClient ConfidentialityTrial PublicityFee Splitting Using Crowdsourced ServicesCloud Storage of Client FilesEx Parte Communications
  76. ETHICS!Relationships Online with JudgesRelationships Online with JurorsWhat’s Discoverable Online
  77. ETHICS! Attorney-Client Relationship FormationAccidental Clients- When does someone become aprospective client?ABA Rule 1.18 - Prospective Clients
  78. ETHICS! Client ConfidentialityCA Evidence Code Section 950ABA Rule 1.18 - discussions with prospectiveclients are confidentialBoth of these issues can be solved by websitedisclaimers - California Formal Op. no. 2005-168
  79. ETHICS! Trial PublicityCalifornia Rule of Professional Conduct 5-120“Extrajudicial Statements”Avoiding prejudicial effectsDon’t say anything you wouldn’t in a phone call orpress release
  80. ETHICS! Fee Splitting Using CrowdsourcedServicesCRPC 1-320 - Can directly or indirectly split feeswith a non-lawyerCan be part of a lawyer referral serviceTerms of Use Rule- Obligation on YouABA Rules Implicated: 1.18, 5.5, 7.1, 7.4
  81. ETHICS! Cloud Storage of Client FilesDefined: Shared Pool of Storage Resources HostedOnlineIf these services are compromised, you arecompromising your clients confidentialinformation
  82. ETHICS! Ex Parte CommunicationsRule 5-300 - Contact with OfficialsOn a case, social media use being consideredex parte communication(Judge Brown follows you on Twitter)
  83. ETHICS! Relationships Online with JudgesJudges involvement limited in online socialnetworking communitiesNo rule barring it, but the “appearance ofimpropriety” appearsCheck California Judicial Ethics CommissionOpinions
  84. ETHICS! Relationships Online with JurorsRule 5-320 - You are barred from having contactwith your jurorsIt’s no different on Twitter & Facebook.Sleuthing through “old high school friends”profiles
  85. ETHICS! What’s Discoverable OnlineSocial Media profiles are fair gameBut how you access them could be an issue
  86. We just scratched the surface.
  87. Lawyer Christina Gagnier @gagnier
  88. ?