1. LAW &
SOCIAL
MEDIA

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 social
web.

6. We are in the alpha phase with the law and how
it will manage, shape and react to the social
web.

7. social media...
...yea
How to Effectively Use
Social Media as a Lawyer

11. Twitter Issues:
Trademark
Abuse Issues- Unwanted Interaction
The 140 Character Attorney-Client Relationship
Following the Right People
Sharing Relevant Information
Attracting Clients Without Giving Counsel

13. Tumblr/Blog Issues:
The Comment Roll (Troll)
Co-Blogging Issues (Copyright)
Consistency of Useful Content

16. Quora Issues:
Answering direct legal advice questions
Disclaiming your interaction on the site

18. Facebook Issues:
Trademark
Copyright
Likes, Comments, Pokes

19. talking about my reputation
What You Can and
Can’t Do With Online Reviews

21. Defamation.

22. The “Case”:
Review about Legal Eagle, Esq.
- “undereducated”
- “ill prepared”
- “exorbitant cost”

23. You cannot sue over opinions.

24. Better question: Do you want to sue?
(especially in California)

26. ANTI-SLAPP laws

27. ANTI-SLAPP laws
Alternatives

28. the game plan
How to Effectively Use
Social Media as a Lawyer

29. Tips for Using Social Media Wisely
Designate someone to manage social media
Decide who does and doesn’t get to use it
Maintain a schedule
Make it a habit, something you enjoy

30. Tips for Monitoring Employee Social Media Use
Legally
NLRB Decisions
Apply offline principles to the online world

31. Tips for Monitoring Employee Social Media Use
Legally
There is no federal law that specifically prohibits
employers from monitoring employee social
media use.

32. Tips for Monitoring Employee Social Media Use
Legally
Issues arise with the time and place of the social
media use, personal v. firm accounts.

33. Tips for Monitoring Employee Social Media Use
Legally
Employer Phones
Personal Phones
Employer Computers
Personal Accounts

34. Tips for Monitoring Employee Social Media Use
Legally
Recent Cases
Stengart v. Loving Care Agency (2010)
Holmes v. Petrovich Development Company LLC
(2011)
Sitton v. Print Direction, Inc. (2011)

35. ?

36. uncharted legal territory
Privacy

37. Distinguishing Fourth Amendment from privacy
in the civil sense.

38. Electronic Communications Privacy Act

39. Personally Identifiable Information (Pii)

40. “Personally identifiable information” is information that
identifies 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.

41. Data collection:
Obvious v. Inferential

42. social networking platforms = corporate-created
legal regimes
Privacy

45. Problem #1: The laws around data reside in
industry silos.

46. Problem #2: They aren’t getting it in DC.

47. Silicon Valley, Alley, Beach > DC

48. Ok, I do have some <3 for the FTC.

49. Problem #3: This isn’t going away.

52. Privacy policies and practices in their current
incarnation are not working.

53. Geolocation

54. Recent Supreme Court Development:
United States v. Jones

55. regulation...or attempts thereof
Privacy

57. 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

58. FTC Action
Opting Out = ScanScout
Children’s Privacy = SkidKids

59. Regulation stymies
innovation and economic growth.

60. Self Regulation stymies
innovation and economic growth.

61. Voluntary implementation just seems smart
and frankly less cumbersome than a federal or
state-by-state legal regime.

62. We can work to create a marketplace that
rewards “privacy by design” while promoting
innovation.

63. commercial issues
Blogging

64. FTC Disclosure Rules

65. 5 Quick Tips Overview
Testimonials with atypical results - must disclose
what is normally expected
Bloggers who are paid to make endorsements must
disclose it
Must disclose connections between research &
advertiser if using a research report
Paid endorsements deceptive if they make false or
misleading claims.
Advertisers & endorsers liable for false or
unsubstantiated claims

66. ?

67. avoiding “Oh S**t moments”
(or advising clients through them)
Liability Issues &
Social Media

68. Two behemoth laws regulate user-generated
content: the DMCA and the CDA.

69. DMCA = Intellectual Property
CDA = Defamatory Content

70. Both laws stem from the need to provide some
shield to ISP’s from the actions of their users.

71. DMCA = Intellectual Property
Safe Harbors
512(a)- Safe harbor “for infringement of copyright by reason
of the [ISP’s] transmitting, routing, or providing
connections for” infringing material.
512(b) – Safe harbor that provides immunity for system
caching
512(c)- Safe harbor that provides immunity for information
residing on the ISP’s systems at the direction of users
512(d)- Safe harbor that provides immunity for information
location tools such as search engines.

72. Names you have probably heard associated
with the DMCA:
YouTube
BitTorrent
The Pirate Bay

73. When the law gets complex:
Sampling and Mashups

74. CDA = Defamatory Content (generally)
Section 230 of the Communications Decency Act
General Rule:
If a website is involved in any way in the creation or
development of the information, they will likely be
considered an “information content provider.” These
opens them to liability.

75. Cases
Fraley v. Facebook, Inc.
Zango v. Kapersky Lab
Doe v. MySpace

76. Cybersecurity

77. Cybersecurity
Data Breach
State Level Compliance
Federal Regulation
Regulatory Efforts by White House and Dept. of
Defense

78. Federal Regulation
Computer Fraud and Abuse Act (CFAA)
Perpetrating crimes on a computer

79. Minors

80. Minors
Children’s Online Privacy Protection Act
“Cyber” Bullying
Binding Contracts

81. Children’s Online Privacy Protection Act
Requires websites to get parental consent before
collecting or sharing info for children under 13
Enforced by the Federal Trade Commission
Applies to commercial websites and other online
services
If you know you have minors on your site, close
the accounts

82. Children’s Online Privacy Protection Act
Regulates all types of identifying information
Exemptions: electronic postcards, contests, online
newsletters, homework help
Example: Disney’s Club Penguin
If you know you have minors on your site, close
the accounts

83. Children’s Online Privacy Protection Act
To 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

84. “Cyber” Bullying
Definition:
Use of the Internet and other technologies to
harm other people through deliberate,
repeated and hostile behavior

85. “Cyber” Bullying
Legislative 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

86. “Cyber” Bullying
Supreme Court Declines Intervening:
Metes and bounds of school’s authority in
these situations

87. Binding Contracts
So many contracts online & so many minors

88. stay outta trouble
Ethical Issues for Attorneys

89. ETHICS!
Attorney-Client Relationship Formation
Client Confidentiality
Trial Publicity
Fee Splitting Using Crowdsourced Services
Cloud Storage of Client Files
Ex Parte Communications

90. ETHICS!
Relationships Online with Judges
Relationships Online with Jurors
What’s Discoverable Online

91. ETHICS! Attorney-Client Relationship Formation
Accidental Clients- When does someone become a
prospective client?
ABA Rule 1.18 - Prospective Clients

92. ETHICS! Client Confidentiality
CA Evidence Code Section 950
ABA Rule 1.18 - discussions with prospective
clients are confidential
Both of these issues can be solved by website
disclaimers - California Formal Op. no. 2005-168

93. ETHICS! Trial Publicity
California Rule of Professional Conduct 5-120
“Extrajudicial Statements”
Avoiding prejudicial effects
Don’t say anything you wouldn’t in a phone call or
press release

94. ETHICS! Fee Splitting Using Crowdsourced
Services
CRPC 1-320 - Can directly or indirectly split fees
with a non-lawyer
Can be part of a lawyer referral service
Terms of Use Rule- Obligation on You
ABA Rules Implicated: 1.18, 5.5, 7.1, 7.4

95. ETHICS! Cloud Storage of Client Files
Defined: Shared Pool of Storage Resources Hosted
Online
If these services are compromised, you are
compromising your clients confidential
information

96. ETHICS! Ex Parte Communications
Rule 5-300 - Contact with Officials
On a case, social media use being considered
ex parte communication
(Judge Brown follows you on Twitter)

97. ETHICS! Relationships Online with Judges
Judges involvement limited in online social
networking communities
No rule barring it, but the “appearance of
impropriety” appears
Check California Judicial Ethics Commission
Opinions

98. ETHICS! Relationships Online with Jurors
Rule 5-320 - You are barred from having contact
with your jurors
It’s no different on Twitter & Facebook.
Sleuthing through “old high school friends”
profiles

99. ETHICS! What’s Discoverable Online
Social Media profiles are fair game
But how you access them could be an issue

100. We just scratched the surface.

101. Lawyer
Christina Gagnier
@gagnier
gagnier@gamallp.com
gamallp.com

102. ?

103. LAW &
SOCIAL
MEDIA