Social Networking and the Law

Subpoena in the Age of Gmail

by Fred Abramson on November 21, 2012 · 1 comment

Everyone I know has an email account. I obtained my first email account when I was studying law at Quinnipiac University in 1994. Back then, information wasn’t as ubiquitous as it is now. For instance, I heard about this thing called the internet and I owned a computer (an old ThinkPad) but there was little information as to how to get online. After a bit of investigation, I signed up for AOL. No, I did not respond to those AOL junk mailings. Did you?

aol cd rom Subpoena in the Age of Gmail

Remember the sound of modems when connecting, Nirvana blasting via CD, the early 90’s. Anyway one of the first things that you do the first time you get online was to establish an email account. What we didn’t have to worry about then we have to worry about now: that a lawyer can obtain a court order to subpoena you email account.

 

The latest public figure to fall from prominence due to an indiscretion with the fairer sex is General Petraeus. How did he get brought down? Through Gmail. You need to be aware that traces of everything that you have ever written in an email will be around forever. Hitting delete is not enough.

 

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As a lawyer, one of the tools that I have in my legal arsenal is the ability to subpoena records. This is the way it works. Let’s say that you own a business and you have a contract to deliver services. You perform the services and now you are owed money.  You worry that instead of paying you, the other party will declare bankruptcy while transferring your funds into an other business that he owns. The way to combat this is by commencing  a lawsuit and then immediately make an Order to Show Cause to subpoena his Gmail account.

If you are behaving in a manner that you would like to be kept private, you should try another form of communication.

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Five Social Media Trends for 2011

by Fred Abramson on December 9, 2010 · 0 comments

social media trends 2009jess3 Five Social Media Trends for 2011

Social Media is hot and it looks to get even hotter for 2011. If you own a business, you need to be aware of the social media trends for the coming year.  At some point, social media may bring in big money for you.

Riffing on  Harvard Business Reviews Six Social Media Trends for 2011, here is my list of the biggest trends of 2011:

  1. Integration. Companies big and small are going to integrate social media to all facets of their business.  I wouldn’t be surprised if you can login to your Verizon account in the near future via Facebook Connect.
  2. Tablets and mobile devices will become king. I’m already a huge user of accessing the internet through my mobile device. The only thing slowing me down is the network. With 4G access being rolled out by all of the major carriers, expect the mobile computing experience to be even better.  With Google’s announcement that tablets will be shipped with limited free access, social networking will become ubiquitous.
  3. Facebook rules location. Location was the hot new thing for 2010 with Gowalla and Foursquare. But Foursquare is simply a superficial check in game with lame corporate sponsorships and a relatively small user base.  People will still be interested in the social aspects of finding their friends while out and about. But all of their friends are on Facebook.  Look for Facebook to take control of location and act like Mike Tyson and knock Gowalla and Foursquare out.
  4. Too many social media chooses leads to consolidation of the social graph. With everyone and their mother creating new social networks (just look at the new Google Chrome App store to view a few of them), people are going to look to a few to integrate their social media presence. The big winners here are the big boys: Facebook, Twitter and Gmail.
  5. Google crushes it in 2011. With information everywhere, Google will continue to do what it does best: find everything on the web. Its search engine is getting better by the day in finding information on social networks such as Twitter. In addition, Facebook will never be able to access anything that happened before 2006.

What do you think of these social media trends? How do you see things turning out differently for 2011?

 Five Social Media Trends for 2011
4561v1 max 250x250 Facebooks Law Department is Ready to Brawl over Requests for Information from a Users Facebook Account
Image via CrunchBase

What privacy rights do you have on social networks? Nearly everyday, civil litigators like myself and law enforcement officials request information from Facebook regarding user information.  Understandably, Facebook has been very difficult in responding to such requests, believing that users have a right to privacy concerning its users information. But how much right should users of social networks have over information that is of public record?

Many social networking sites have taken the position that they will not respond to requests for information without a subpoena.  This is a problem because users cannot obtain access to their accounts even if their account has been hacked.

This is especially problematic when it comes to the problem of cyber bullying. I have been trying to obtain records from Facebook for a client whose child whose account has been hacked by a cyber bully.  Facebook has been unwilling to provide information to me about my clients own account.

According to Law.com, the Deputy General Counsel of Facebook, Mark Howitson told lawyers at the Legal Tech Conference in New York today that they are ready to fight requests for user  information without a subpoena.

Unfortunately, you can only serve that subpoena in California which is problematic if you live in New York. Even with a subpoena, they will only provide basic subscriber information unless that user gives his or her consent.  The company believes that it does not have to provide user information under the Electronic Communications Privacy Act which was passed before Mark Zuckerberg, the founder of Facebook, danced to his first disco tune at his bar mitzvah. Since this issue is relatively new, a congressional hearing is forthcoming.

Mr. Howiston suggests that the best way to obtain information from Facebook is to make a simple friend request, which is of little utility.

What do you think?  What right of privacy should you have on social networks?  Should there be a cyber bullying exception?

 Facebooks Law Department is Ready to Brawl over Requests for Information from a Users Facebook Account
2974843314 04b0e5177b m Why your Social Networking Policy Should Address Collaboration
Image by notoriousxl via Flickr

I have a friend who is an accountant at a small firm. Lets call him Cliff.  Cliff greets everyone with a compliment and is an ace accountant.  Cliff surfs the internet at work.  Cliff was recently on Twitter,  looking for people to follow.  He becomes Twitter “friends” with Samantha, an accountant at Hobes and Hobes, a rival firm.  From the looks of Samantha’s avatar, she is attractive.

Samantha asks Cliff to meet him at a bar after work. After a few dirty martinis, Cliff tells Samantha that his accounting firm is about to land Giggle, a big, funny internet company. Samantha buys the next round and that was the last thing he remembers.  He wakes up the next morning and finds out that Hobes and Hobes has landed the Giggle account.

Does your company block access to social media sites such as Twitter, Facebook and Linkedin because you are afraid of employees like Cliff? Is the work environment at your workplace hostile to employees who blog? If so, your company is part of the majority of organizations that have a restrictive social networking policy.

While a strict social networking policy is a simple way of limiting legal liability, do you really think that your company can compete in a 24 hour a day workplace with outdated policies? Probably not.  If your company is  struggling with how to integrate social media into the workplace, one way to focus is by creating a social media policy with an eye toward collaboration.

The Harvard Business Review observes that businesses are discovering that an über-connected work environment is not just about implementing a new set of tools — it is also about embracing a cultural shift to create an open environment where employees are encouraged to share, innovate and collaborate virtually.   Some benefits of a hyper-social company include:

  • Access to social media improves productivity;
  • Millennials will seek jobs that encourage the use of social media;
  • Companies that provide access to social media create a more engaged workforce.

After creating your hyper-social networking policy, it is then vital to address its legal implications, which I addressed previously in Legal Reasons Why Your Company Should Have a Social Networking Policy.

CONCLUSION

Employees are online whether you like it or not.  By simply banning the use of social networking sites on company computers, your employees will simply use smartphones to stay connected. By thinking expansively about social media, more specifically about using it for increased productivity and collaboration, there is great opportunity for growth.  Have your ideas written in the form of a social media policy, which will put your employees on notice of any potential legal problems. By the way, Cliff is not real. But he could be and you can be responsible for Cliff’s actions without a written social networking policy.

 Why your Social Networking Policy Should Address Collaboration

FTC Rules for Bloggers governing testimonials

by Fred Abramson on November 9, 2009 · 0 comments

ftc logo 150 FTC Rules for Bloggers governing testimonialsIn early October, the FTC published its guidelines governing testimonials. The main purpose of these new guidelines is to protect the public from hidden endorsements.

Many bloggers are paid by advertisers to write about a product.  If you are a tech blogger and you were handed a shiny Droid phone by Verizon to blog about its new camera, you are now required to disclose that relationship.  The new guidelines  have  teeth, with fines of up to $11,000 for not disclosing payments. How are bloggers and advertisers able to protect themselves from an unwanted legal action?

ADVERTISERS AND BLOGGERS NEED A WRITTEN AGREEMENT

If you are an advertiser and you pay bloggers to review and report on your product and services, you must develop an agreement with the blogger that mirrors the guidelines of the FTC rules.  The agreement should:

  • Prohibit them from  against making baseless claims about the service or product;
  • Require the blogger to disclose the connection between the advertiser and the blog owner. A tech blogger must disclose in its review of the Droid smartphone that it received the Droid for free.

THE ADVERTISER MUST MONITOR THE WORK OF THE BLOGGER

  • The advertiser should also set up a Google Alert,  follow the blogger on all social media and constantly review the blog posts to make sure that the blogger complies with the FTC rules.

MONITOR YOUR EMPLOYEES

  • A company is also responsible for what their employees disseminate on social media.   Companies must have their employees disclose that they work for them in any reviews.  You can also prohibit your employees from reviewing any of your products.

BE TRUTHFUL

This may appear obvious, but both bloggers and advertisers now have an affirmative duty not to mislead or make a statement about the product that his untrue. Bloggers now have to perform due diligence about the product before posting.  Bloggers now must review the product in an unbiased manner.

What do you think of the new FTC rules?  Are they necessary?  How do you think they will be enforced?

The Law Office of Frederic R. Abramson drafts agreements between bloggers and advertisers.  For more information, contact me at 212-233-0666

 FTC Rules for Bloggers governing testimonials

The bar is high for Defamation Lawsuits against reviewers on Yelp and “Gripe” sites.

November 3, 2009

Unhappy customers are a fact of life for small businesses.  In the past, if a customer was was not pleased about the Miso Black Cod he would simply kvetch to a hundred of his closest friends and never return (unless he was Larry David).
Web 2.0 has changed the way people complain.  Disgruntled customers now spend [...]

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Why You Need to Practice Giving Value

October 28, 2009

I have recently started reading The Magic of Thinking Big, by David J. Schwartz. The book, written in 1959, has been getting a lot of ink lately because his ideas are classic. Business thought leaders such as Seth Godin and Tim Ferriss cite the book as required reading.
Mr. Schwartz suggests that we should practice giving [...]

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Should Bosses Be Worried About Accepting Facebook “Friend” Requests?

October 27, 2009

Image via Wikipedia

Social Media is quickly transforming how people are communicating with each other.  It should come as no surprise that employees are now looking to connect with their bosses on Facebook.
The New York Law Journal (under a pay wall) reports today that the innocuous friend request is really a Trojan horse which contains the hidden danger of litigation.  Should bosses accept Facebook “Friend” [...]

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Review of Chris Brogan’s Trust Summit: Be a Priest and Build a Church

October 23, 2009

Social Media is an ongoing experiment.  Both people and companies are using this new tool to connect with people that they have never met in person.  The main goal of all of this activity is to generate new business.  The million dollar question is how to convert your Twitter followers and Facebook friends into [...]

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Litigation, Privacy and other Legal Issues in Cloud Computing

October 21, 2009

There is a growing trend for companies to store information at a remote location, or a “cloud.” Whether you are using Google Docs or have remote servers physically located elsewhere, if you are collaborating with other people and information is not stored on your hard drive, you are probably “cloud computing.”
So who is effected by [...]

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