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LAW &

SOCIAL
MEDIA
What is social media?
Rule of thumb:

If you dont use it,


dont practice it.
Becoming a Digital Citizen
We are beta testing the global power of the social
web.
We are in the alpha phase with the law and how
it will manage, shape and react to the social
web.
social media...
...yea

How to Effectively Use


Social Media as a Lawyer
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


Tumblr/Blog Issues:

The Comment Roll (Troll)

Co-Blogging Issues (Copyright)

Consistency of Useful Content


Quora Issues:

Answering direct legal advice questions

Disclaiming your interaction on the site


Facebook Issues:

Trademark

Copyright

Likes, Comments, Pokes


talking about my reputation

What You Can and


Cant Do With Online Reviews
Defamation.
The Case:

Review about Legal Eagle, Esq.

- undereducated
- ill prepared
- exorbitant cost
You cannot sue over opinions.
Better question: Do you want to sue?

(especially in California)
ANTI-SLAPP laws
ANTI-SLAPP laws
Alternatives
the game plan

How to Effectively Use


Social Media as a Lawyer
Tips for Using Social Media Wisely

Designate someone to manage social media

Decide who does and doesnt get to use it

Maintain a schedule

Make it a habit, something you enjoy


Tips for Monitoring Employee Social Media Use
Legally

NLRB Decisions

Apply offline principles to the online world


Tips for Monitoring Employee Social Media Use
Legally

There is no federal law that specifically prohibits


employers from monitoring employee social
media use.
Tips for Monitoring Employee Social Media Use
Legally

Issues arise with the time and place of the social


media use, personal v. firm accounts.
Tips for Monitoring Employee Social Media Use
Legally

Employer Phones

Personal Phones

Employer Computers

Personal Accounts
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)


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uncharted legal territory

Privacy
Distinguishing Fourth Amendment from privacy
in the civil sense.
Electronic Communications Privacy Act
Personally Identifiable Information (Pii)
Personally identifiable information is information that
identifies a particular person. Pii includes:

Full name;
National identification number;
IP address;
Vehicle registration plate number;
Drivers license number;
Face;
Fingerprints;
Handwriting;
Credit card numbers;
Digital identity;
Date of birth;
Birthplace; and
Genetic information.
Data collection:

Obvious v. Inferential
social networking platforms = corporate-created
legal regimes

Privacy
Problem #1: The laws around data reside in
industry silos.
Problem #2: They arent getting it in DC.
Silicon Valley, Alley, Beach > DC
Ok, I do have some <3 for the FTC.
Problem #3: This isnt going away.
Privacy policies and practices in their current
incarnation are not working.
Geolocation
Recent Supreme Court Development:

United States v. Jones


regulation...or attempts thereof

Privacy
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


FTC Action

Opting Out = ScanScout

Childrens Privacy = SkidKids


Regulation stymies
innovation and economic growth.
Self Regulation stymies
innovation and economic growth.
Voluntary implementation just seems smart
and frankly less cumbersome than a federal or
state-by-state legal regime.
We can work to create a marketplace that
rewards privacy by design while promoting
innovation.
commercial issues

Blogging
FTC Disclosure Rules
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
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avoiding Oh S**t moments
(or advising clients through them)

Liability Issues &


Social Media
Two behemoth laws regulate user-generated
content: the DMCA and the CDA.
DMCA = Intellectual Property

CDA = Defamatory Content


Both laws stem from the need to provide some
shield to ISPs from the actions of their users.
DMCA = Intellectual Property

Safe Harbors

512(a)- Safe harbor for infringement of copyright by reason


of the [ISPs] 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 ISPs systems at the direction of users

512(d)- Safe harbor that provides immunity for information


location tools such as search engines.
Names you have probably heard associated
with the DMCA:

YouTube

BitTorrent

The Pirate Bay


When the law gets complex:

Sampling and Mashups


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.
Cases

Fraley v. Facebook, Inc.

Zango v. Kapersky Lab

Doe v. MySpace
Cybersecurity
Cybersecurity

Data Breach

State Level Compliance

Federal Regulation

Regulatory Efforts by White House and Dept. of


Defense
Federal Regulation

Computer Fraud and Abuse Act (CFAA)

Perpetrating crimes on a computer


Minors
Minors

Childrens Online Privacy Protection Act

Cyber Bullying

Binding Contracts
Childrens 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
Childrens Online Privacy Protection Act

Regulates all types of identifying information

Exemptions: electronic postcards, contests, online


newsletters, homework help

Example: Disneys Club Penguin

If you know you have minors on your site, close


the accounts
Childrens Online Privacy Protection Act

To comply:

Post a privacy policy/advise whenever personal


information collected

Parental notice, consent, access to information

Cant condition participation on providing


more info

Confidentiality & security of information


collected from children
Cyber Bullying

Definition:

Use of the Internet and other technologies to


harm other people through deliberate,
repeated and hostile behavior
Cyber Bullying

Legislative Attempts in CA:

AB 9 Seths 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


Cyber Bullying

Supreme Court Declines Intervening:

Metes and bounds of schools authority in


these situations
Binding Contracts

So many contracts online & so many minors


stay outta trouble

Ethical Issues for Attorneys


ETHICS!

Attorney-Client Relationship Formation

Client Confidentiality

Trial Publicity

Fee Splitting Using Crowdsourced Services

Cloud Storage of Client Files

Ex Parte Communications
ETHICS!

Relationships Online with Judges

Relationships Online with Jurors

Whats Discoverable Online


ETHICS! Attorney-Client Relationship Formation

Accidental Clients- When does someone become a


prospective client?

ABA Rule 1.18 - Prospective Clients


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
ETHICS! Trial Publicity

California Rule of Professional Conduct 5-120


Extrajudicial Statements

Avoiding prejudicial effects

Dont say anything you wouldnt in a phone call or


press release
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


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
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)


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
ETHICS! Relationships Online with Jurors

Rule 5-320 - You are barred from having contact


with your jurors

Its no different on Twitter & Facebook.

Sleuthing through old high school friends


profiles
ETHICS! Whats Discoverable Online

Social Media profiles are fair game

But how you access them could be an issue


We just scratched the surface.
Lawyer

Christina Gagnier
@gagnier
gagnier@gamallp.com
gamallp.com
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LAW &

SOCIAL
MEDIA