Social Media Reputation, Sexting, and Privacy

If you have been given a second or third chance to rebuild your reputation don't ruin it with a bunch of sexts. Last night, The New York Post reported that former Congressman Anthony Weiner was sexting another woman who was not his wife. In the past five years, this is the third time he has been publicly caught for this type of behavior.

Weiner's sexting cost him his job as a Congressman in 2011, his chance to become the mayor of New York City in 2013, and now his marriage.  In addition to his marriage, multiple news organizations such as NY1 and The New York Daily News have either suspended or terminated their relationship with him.  In other words, sexting has destroyed his personal life and his career as a politician/political pundit.  

While the American public loves a great comeback story, this time may be different for Weiner.  One of his sexts included a photo of his son lying next to him in bed with his shirt off. The sexts associated with his son may lead to an inquiry into potential child endangerment charges and/or utilized by his soon to be ex-wife wife in a custody battle. While the American public generally forgives those involved in sex scandals, they may not forgiving this time because a young child was unnecessarily dragged into Weiner's troubling personal activities.

I have advised many clients over the years who have either lost their jobs due to sexting, been blackmailed due to dumb online posts, or had their personal lives destroyed (i.e. marriage dissolved or personal relationship ended) due to inappropriate social media activity.  My job is to protect my clients' reputation.  Unfortunately, too often clients and potential clients contact me for counsel after an activity has been exposed.  In general, if they would have been proactive and sought advice prior to their activity becoming public their post incident options would be much different.    

During Weiner's 2011 sexting scandal, I spoke with several media outlets about his social media behavior and the law.  His 2013 sexting scandal and this current incident demonstrates continued poor judgement.  It appears that in the five years since Weiner resigned from Congress due to inappropriate social media activity he hasn't learned anything about social media, reputation, or personal privacy.     

The bottom line is that you must be careful every time you send a digital message.  You never know whom you are really talking with on the Internet.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.   

Microsoft Takes A Stand Against Online Violence and Hate Speech

According to Business Insider, Microsoft is making it easier to report online threats and abuse. The company has created a new form to report content posted on its consumer services that may constitute online violence or hate speech.

Some of the content that may constitute violations against Microsoft's new policy includes: postings that advocate violence based upon age, disability, gender, national or ethnic origin, race, religion, sexual orientation or gender identity. The policy specifically states, "[p]lease note that not all content that you find offensive is considered hate speech and, in reviewing your report, Microsoft may choose to take no action."

For years, the Internet has been the Wild Wild West when it comes to speech. Sometimes this a good thing while in other instances this atmosphere has created some very troubling situations. Microsoft's new policy is a positive development that is worth trying.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.   

Bank Privacy in the Social Media Age

Have you ever read the annual bank privacy notices that you receive in the mail? If not, it may be a good time to do so.  The FDIC has a website filled with information regarding how banks may protect or utilize your personal financial information for purposes other than account maintenance.

I recently updated some of my privacy choices for one of the banks I do business with and found it to be more cumbersome than anticipated.  I initially tried to make the appropriate updates online but the process was not consumer friendly so I contacted my bank.  The choices I made to help better protect my privacy and reputation included: Do not call with bank offers; Do not email with bank offers; Do not send me offers in the mail from the bank; and Do not share my personal financial information with bank affiliates or third parties.

I can't recall the last time this bank sent me an offer that was worth taking advantage of and I have never received an offer from one of this bank's affiliates or a third party that does business with the bank that was worth accepting.  In general, I have found these marketing offers to be worthless and a waste of my time.

The stronger your privacy choices are the less likely you will become a target of a scam. Protecting your privacy will help better protect your personal and professional reputation.    

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.    

Social Media Reputation, Employee Complaints, the NLRB, and Chipotle

The National Labor Relations Board recently upheld a decision by an administrative law judge against Chipotle that ruled the company violated an employee's right to complain about his job when it required him delete tweets that were critical of the company and then subsequently fired him.  

The employee deleted some personal tweets after Chipotle's national social-media strategist saw them in January 2015. According to The New York Daily News, one of the offending posts stated: 

@ChipotleTweets, nothing is free, only cheap #labor.  Crew members make only $8.50hr how much is that steak bowl really?

How did Chipotle's national social media strategist identify that the Twitter account that had the offending Tweets came from one of its employees?  Did the employee identify himself as such? Why would the social media strategist think this tweet or group of tweets was so offending that it needed to ensure that the Tweets were deleted?  Did the social media strategist realize that his/her actions had the potential to create a social media crisis? 

Chipotle's social media strategist's actions led to tremendous legal bills for the company and numerous negative articles about the company's social media policy. One take away is that too many "social media experts" do not understand how to properly draft, implement or follow corporate social media policies.  

Many "social media experts" have never had the proper training on how to handle this type of situation and how to avoid a social media crisis.  In this case, the best path forward after seeing one or more negative tweets would have been to ignore it/them.  It would have saved the company tens if not hundreds of thousands of dollars in legal and other related costs.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.   

Social Media Cyberbullies Unfairly Attack Reputation of Gabby Douglas

As an American, I am very proud of how our Olympians are doing in Rio. Many of our athletes have had to overcome tremendous personal obstacles just to have an opportunity to compete at the Olympics.  One such athlete is Gabby Douglas who has been a star performer for years.  

Gabby Douglas has won 3 Olympic gold medals while representing the United States (two at the 2012 London games and one at the 2016 Rio games) and multiple gold medals in the world championships.  She is not just an all around Olympic champion but also a class act who conducts herself professionally in public. Always smiling and being classy, despite public set backs and dumb questions from the media is extremely difficult for anyone, especially someone who is just 20 years of age.

After Gabby Douglas' team won the all around gold medal in gymnastics, a handful of Internet cyberbullies criticized her for not putting her hand over heart during the playing of our national anthem during the medal ceremony. In years past, these online critics would be ignored. Unfortunately, some members of the international media gave these cyber-bullies an out sized platform to unfairly criticize the way Gabby Douglas conducted herself.

If these ignorant cyber-bullies knew their Olympic history they would realize they had no basis for their criticism. For example, some members of the original Dream Team in 1992 that featured some of the best basketball players to ever suit up didn't put their hands over their hearts during the playing of our national anthem at their medal ceremony.

Even though Ms. Douglas was perfectly respectful during the competition and afterward and owed nobody an apology, she still gave one to get this ridiculous story out of the media cycle. Sometimes the best course of action to put a matter to bed is to apologize and move on, other times it may be best to ignore unfounded criticism, and sometimes it is best to challenge the critics.

When a potential social media crisis is about to strike it is imperative to understand how to properly respond.  Your professional reputation or the reputation of your business may hang in the balance of your actions.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.    

Feds To Protect Social Media Reputation of Nursing Home Residents

On Friday, the Center for Medicare and Medicaid Services announced that it would crack down on nursing home operators whose employees record and post on social media demeaning audio, images, and video of their residents.  

ProPublica recently documented almost fifty incidents during the past several years where nursing home and assisted living facility employees took unauthorized abusive photos of their patients and posted them online without permission.  ProPublica's investigation prompted Sen. Charles Grassley to contact the U.S. Department of Justice and the Office of Civil Rights to work on a solution to this increasingly troubling problem.  

Posting photos of others in vulnerable positions is not just a problem in nursing homes, assisted living facilities, and in hospitals, it is also a problem in other areas where people may unclothe. For example, earlier this year, 2015 Playboy Playmate of the Year Dani Mathers took a naked photo of a fellow gym member of LA Fitness getting out of the shower and posted it on Snapchat for "sh#ts and giggles". 

Social media abuse is increasing faster than the law can keep up. Therefore, it is imperative for companies to ensure that their employees are properly trained about these issues by legal experts to avoid easily preventable multi-million dollar social media privacy lawsuits.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.    

Reputation Expert's Career Over After Social Media Outrage

When I first read this Business Insider interview with Saatchi and Saatchi's chairman Kevin Roberts about gender diversity, I was surprised by his statements and his admission that he doesn't spend any time on gender issues.  If these comments were made in 2006 and not 2016 I don't believe they would have led to his ouster.

What has changed in the past 10 years?  The ubiquity of social media and other digital platforms that can make you the most popular person in the world one minute and the biggest a@#$)*e the next. In the Social Media Age, any comment in either the physical or digital world has the potential to damage one's personal and professional reputation.

According to The Wall Street Journal, Kevin Roberts was due to retire in May 2017 before his Business Insider interview was published.  However, that changed quickly after social media users re-tweeted the Business Insider article and other media outlets picked up the story.

Before agreeing to an interview or appearance on any traditional or digital platform it is important to properly prepare. I regularly speak to the media and counsel clients on how to interact with journalists.  Not everyone is ready for the attention that may occur after they are interviewed about an issue.

Your reputation may forever be negatively altered by one wrong statement to the media or Tweet. There may also be tremendous legal consequences involved when you speak to the media or post online so when you are unsure about what to do don't forget this famous saying:  "better to remain silent and thought a fool than to speak and remove all doubt".

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.    

Online Reputation, Snapchat, Draymond Green, and Penis Pics

According to Webster's online dictionary, reputation is: "the common opinion that people have about someone or something."  One's reputation may be a mix of how you conduct yourself at home, at work, at the gym, at your place of worship, online, etc...

Over the weekend, NBA star Draymond Green accidentally posted a photo of his penis on social media platform Snapchat.  He initially claimed on Twitter that his account was hacked; however, he soon apologized and admitted to the mistake.  Green stated that he meant to send the photo as a private message but hit the wrong button.  

While the incident appears to be short lived, it was a distraction that didn't need to happen.  In addition to being a member of the Golden State Warriors of the NBA, he is also a member of Team USA's basketball team and is representing our country at the Rio Olympics later this week.  If this incident occurred during the Olympic games it may have become a much bigger deal.          

In general, unless you need to send a photo of your private parts to the doctor because of a medical condition you should not be taking photos of yourself naked or of others.  I have heard too many horror stories from too many clients about how they wanted to impress a significant other(s) so they sent naked photos of themselves only later to regret it.    

Kim Kardashian's sex tape success was an aberration in the naked fame game.  Her father had been famous for being friends with O.J. Simpson, and her mother's 2nd husband was Bruce (now Caitlyn) Jenner who was one of the most famous athletes of the 1970's.  So she had a well thought out game plan on how to create and capitalize on getting naked in front of a camera.  In contrast, there are countless stories of others whose lives were destroyed because of naked images of themselves were published for the world to see.  

Protecting your privacy is paramount in protecting your reputation. Therefore, its imperative to understand how to protect yourself from a digital mistake in the Social Media Age.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.    

Online Reputation: Will Miss Teen USA Lose Her Crown Over Tweets?

The Miss Teen USA pageant is currently in the middle of a social media crisis.  According to CNN, soon after Karlie Hay won the pageant on Saturday night it was uncovered that in 2013 and 2014 she had made multiple posts on Twitter that used a racial slur towards African-Americans.

Ms. Hay quickly apologized when asked about the racial slurs on her Twitter account and subsequently made her Twitter account private.  While this is a good initial response, it is too soon to determine if this will be enough to avoid a forced resignation.  

As of this writing, the pageant is still behind Ms. Hay.  However, I don't want to speculate what the pageant organizers will do if there is a groundswell of pressure to strip Ms. Hay of her title that was not anticipated. When I advise clients about similar issues there are many factors at play.  Legal, financial, and reputation issues are intertwined in the Social Media Age so organizations generally don't have a lot of time to make a decision.

Over the years, there have been several instances where a pageant winner was forced to resign after winning. The most famous occurred in 1984, when Vanessa Williams resigned as Miss America for posing nude before she was crowned Ms. America. According to Time Magazine, Ms. Williams was given the impression the photos would be in silhouette form and she would not be identifiable. Unfortunately, Ms. Williams signed a model release which enabled the photographer to do whatever he wanted with the photos which included selling them to Penthouse Magazine.

Old Facebook posts and Tweets are regularly held against students when applying to schools and job applicants when applying for employment. The bottom line is that you must be careful about how you carry yourself in both the physical and digital world to ensure that you don't harm your reputation and the reputation of others.     

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.

Playboy Playmate Under Criminal Investigation For Snapchat Photo

According to Entertainment Tonight, the LA Police Department has opened an investigation into 2015 Playmate of the Year Dani Mathers' Snapchat activity after it received a complaint from LA Fitness. It appears that the investigation is centered around an alleged illegally disseminated private image Ms. Mathers took of a fellow gym member inside an LA Fitness club. While Ms. Mathers was in the bathroom/shower area of an LA Fitness gym she took a naked photo of another person and posted it on Snapchat with some negative comments.  

Subsequently, the naked photo Ms. Mathers posted went viral and she has gone from being the bully who body shamed a fellow gym member for personal pleasure to a target herself.    If the person in the photo comes forward Ms. Mathers could face up to six months in prison for her behavior.

Since Ms. Mathers published the naked photo, she has been suspended from her radio show and banned from all LA Fitness gyms.  Online, thousands of people have also stated how disgusted they are about Ms. Mathers' actions.      

Ms. Mathers' behavior demonstrates she didn't even realize what she had done was wrong. Her apology shows she doesn't have a clue about the law or proper digital behavior.  Ms. Mathers only apologized for posting the photo on Snapchat.  She admits in her so called apology that she had the intent to take the naked photo of stranger and share it with her friends.  This demonstrates a lack of remorse and understanding of the seriousness of the situation.

People have an expectation of privacy in bathrooms whether they are in a public restroom or a private club.  Those who violate this expectation of privacy should be held legally accountable. If Ms. Mathers is sued by the person whom she photographed I wouldn't be surprised if a settlement or judgement is either six or seven figures. The Erin Andrews jury verdict and subsequent settlement is the benchmark to measure these types of privacy violations.  

The bottom line is that companies need to better train their employees about these issues because one dumb Snap, Tweet, or Post can create millions in legal liability.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.

Microsoft Wins Major Data Privacy Decision For Users

Microsoft won a major privacy legal victory for users today when the 2nd U.S. Circuit Court of Appeals ruled that the Department of Justice (DOJ) can't use a U.S. search warrant to access customer data stored overseas.  The unanimous 3-0 ruling is a victory for the rule of law, privacy, and the usage of new technologies such as the cloud.

The case started in 2013 when a New York federal judge issued a warrant for the emails of a drug trafficking suspect.  Some of the requested content was stored in Microsoft's computers in Ireland so the company refused to turn the data over unless the U.S. government followed well established international rules on obtaining evidence in a foreign country. 

In 2014, the U.S. Southern District of New York ruled that search warrants issued under the Stored Communications Act (SCA) enable the government to access data stored anywhere in the world. This ruling had affirmed a magistrate judge's decision that focused on who controls the data and not the location of the data.  The 2nd U.S. Circuit Court of Appeals unanimous ruling clearly demonstrates that the lower courts misinterpreted the SCA and Congress' intent on digital privacy.

During the past several years, I have attended numerous conferences and congressional hearings on the issues surrounding this case.  I have listened to many of the legal and public policy arguments as to why the lower courts' rulings must stand or be reversed. Today's ruling is a victory for privacy rights in the Digital Age, democracy, and technology public policy.  In short, the general legal protections that apply to the physical world have been extended to the digital world.

My hope is that other courts focused on similar privacy issues take notice of this decision and that Congress sooner rather than later enacts common sense data privacy laws for the Digital Age. The U.S. must be a leader in technology public policy and the 2nd U.S. Circuit Court of Appeals has taken our country a step in the right direction.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.     

Pokemon Go, Augmented Reality, and Legal Liability

Pokemon Go is the hottest mobile game sweeping the world.  It can easily be downloaded onto a mobile device and it incorporates the physical world into the virtual world.  In other words, its an augmented reality game.

Pokemon Go uses your phone's GPS and camera while you play the game.  In addition, Techcrunch has reported that the game wants permission to collect a tremendous amount of your personal information.  Generally, you should just say no to allowing for this type of personal data collection.  

While there are thousands of games that can be downloaded onto your phone this appears to be the first popular augmented reality mobile game that has gained international traction.  It has become so popular that criminals are utilizing it to rob and harm users.  According to published reports, at least 9 Pokemon Go users have been lured and robbed while using the app.

It may be a matter of when and not if a Pokemon Go user who has become a victim of one of these crimes sues the game's publisher for creating an "attractive nuisance" or some other type of tort.  Due to Section 230 of the Communications Decency Act it may be difficult for a potential Pokemon Go plaintiff to win a lawsuit based upon this or similar causes of action.

The bottom line is that users must understand the risks inherent when downloading and utilizing digital games.  Just because something may look harmless on your phone, that doesn't make it necessarily so.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Will Dallas Police Tweet Create Millions In Legal Liability?

Social Media has changed our society forever.  Our physical lives have become so intertwined with our digital lives that it is difficult to keep them separate.  Unfortunately, many people, businesses, government entities, schools, and other organizations still don't have a clue about the legal ramifications of every single Tweet, post, snap, livestream, etc...

During the past several days, we have had multiple terrible tragedies occur that were either streamed live on Facebook or posted online soon after the incidents occurred.  The facts surrounding the shootings in Minnesota and Louisiana where police officers shot and killed African-American men who may have been armed but not brandishing their weapons or acting in a menacing way are very troubling.  Due to the proliferation of cell phones and social media, footage of these incidents and/or aftermath have been viewed and shared millions of times around the world before the authorities have had the time to investigate what happened.  

Unfortunately, it appears that many government agencies do not understand the legal implications of social media.  A case in point is what happened in the aftermath of the terrible tragedy in Dallas where at least 12 police officers were shot and 5 tragically killed in a senseless attack on law enforcement who were at a peaceful protest for the shootings that occurred in Louisiana and Minnesota. According to multiple published reports, the shooter "wanted to kill white people, especially white officers".

In the chaos that ensued after the shootings, the Dallas Police Department Tweeted out a photo with the caption:  "This is one of our suspects. Please help us find him!"  Within hours of the Tweet, the person pictured in the photo had allegedly received thousands of death threats. This person ended up not being connected in any way to the Dallas tragedy and was just a person exercising his First and Second Amendment rights in a public street during a peaceful protest.  

I am not sure who on the Dallas Police Department published the irresponsible Tweet but it may create tremendous legal liability for the agency.  In 2013, The New York Post settled a lawsuit for inferring that a couple of innocent people were involved in the Boston Marathon terrorist attack. Seventeen years earlier, the 1996 terrorist bombing at the Atlanta Olympics made a pariah out of Richard Jewell after law enforcement carelessly leaked his name to the media as the prime suspect in that terrible attack.  

Since 2011, the Dallas Police Department has spent approximately $6 million dollars on lawsuit settlements.  Most of those settlements were related to police brutality and other misconduct issues. I am not aware of a case where the police department has created a a social media fire storm that put an innocent man's reputation and safety at risk.        

The bottom line is that organizations need to better understand the legal and societal issues inherent with social media.  This includes better policies, education, and training. Over the years, I have seen too many entities create bad policies and not hire the right people to properly advise, educate, and train their employees about digital issues.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Cheating Website Ashley Madison Investigated By FTC

Last year, the website Ashley Madison was hacked and the personal information of its users was uploaded online.  This wasn't just any website, it was one that catered to people looking to cheat on their significant other.  Subsequently, the company's CEO resigned and its revenues drastically decreased.  

Soon after the hack was reported, I stated that "it would not surprise me if the FTC became involved in the matter". It appears that the FTC has decided to investigate the company because according to Reuters it has opened an investigation into Ashley Madison's creation of fake female profiles or fembots to increase user engagement with its male customers.  Hiring companies that specialize in creating misleading daily active users (DAU's) or other metrics is such a common phenomena that on the season finale of HBO's Silicon Valley this issue became what appears to be an integral part of the series moving forward.  

There is a tremendous amount of fraud online because it is very difficult for perpetrators to be exposed and held accountable for their actions. The digital space is teaming with not just unethical companies but also "self described experts" that intentionally mislead others about their background and service offerings to build their reputation. 

While its too early to speculate on the focus of the FTC investigation, this should be a wake up call regarding trusting companies or "self described online experts" with your organizations' sensitive data.  

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved. 

Reputation Update: Florida Prosecutor Fired Over Facebook Comments

Last week, I wrote that Florida Assistant State Attorney Kenneth Lewis was suspended for posting online inflammatory messages about the city of Orlando in wake of the tragic nightclub terrorist attack.  Instead of being provided the opportunity to continue as a prosecutor he has been fired.

At the time of his suspension, his office stated, "Mr. Lewis violated the SAO9 social media policy. The social media policy was adopted and implemented on February 20, 2015, as part of SAO9’s code of conduct. Every employee is required to sign the policy. Failure to comply can result in discipline up to and including termination."  

Yesterday, the State's Attorney stated, "Whether you [Mr. Lewis] intended to convey that all those who attend nightclubs are animals (the zoo reference) or whether the reference to 'debauchery' was meant to express some objection to the lifestyle choices of those who attended this club, we will never know. I cannot believe that a man of your intelligence would not realize that your comment could bear that interpretation.....I can no longer defend you as a prosecutor free of bias. Therefore the recommendation of termination is also upheld. You shall remain on suspension until June 30, 2016 at which time your employment with this office will be terminated."  

The bottom line is just because you have the ability to post an opinion on Facebook doesn't mean that its a good idea to do so.  Therefore, the next time you hear a self styled social media expert/guru/ninja, etc... state how important it is to "be authentic" or "share more" online you know that that person doesn't know the first thing about social media, reputation, or the law.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.