Some employers and other institutions are quietly demanding that employees and applicants turn over their social media user names and passwords as part of the background check process. According to a story in The Atlantic, Maryland Division of Corrections (DOC) Officer Robert Collins alleged that the State of Maryland recently demanded that during a re-certification interview he was required to provide his employer his personal Facebook user name and password.
Mr. Collins turned over the requested information because he wanted to keep his job but then contacted the ACLU about his experience. According to the ACLU, there may be some issues under the Federal Stored Communications Act and Maryland state law that may have been violated with this demand. Whether demanding an employee or applicant to turn over his Facebook login information is legal is a question that may one day be decided by the courts and/or state legislatures and/or Congress.
Under Section 4.8 of Facebook's Statement of Rights and Responsibilities (Revision Date: October 4, 2010) it states, "You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account." Turning over one's Facebook login information to an employer or any other third party may violate Facebook's Terms of Use. An employee and/or job applicant may be put in a Catch-22: turn over your Facebook access information or lose your job and/or you won't be offered a job. However, if you turn over your Facebook access information to a third party, Facebook may terminate your Facebook account. Interesting dilemma.
This is not the first time I have heard about this type of situation and I predict there will be a tremendous amount of litigation on this point in the future. In 2009, the City of Bozeman, Montana tried to force its job applicants to turn over their social media account(s) access information. After a national uproar this policy was discontinued. However, this background check approach is still being tried across the country.
While at a conference last year, one of the participants told me that during a college admissions interview of a neighbor's son, the applicant was requested to turn over his Facebook user name and password. The college applicant had no problem turning over his "official Facebook user name and password" because the high school student had two Facebook accounts.
This high school student's "official Facebook account" that was turned over to an admissions interviewer on the spot was sterile and was the one that his parents had friended him on to keep track of his online activity. The applicant's real Facebook account contained information that most likely would have kept the applicant from being accepted to his dream school or any other academic institution. These demands are generally targeted at student-athletes. Some student-athletes at major college sports powerhouses are being required to Facebook friend coaches and/or install spying software onto their personal social media accounts/computers.
Having more than one Facebook account is becoming more common and I encourage some of my clients to have multiple Facebook accounts in case they are ever "requested" to turn over their Facebook user name and password. I recommend that most employers in both the private and public sector review and update their personnel policies to ensure that they properly address social media usage. There is no one size fits all policy so employers may want to work with their employees, human resource departments, and their lawyers to draft appropriate social media policies.
New York City's Police Department has a different culture than Andy Griffith's Mayberry Police Department so I would not recommend Mayberry copying the NYPD's social media policy because what may be acceptable in NYC may not be so in Mayberry and vice versa. In addition, different departments within a government may have different social media policy needs. For example, The City of New York Mayor's Office of Film, Theatre, and Broadcasting may have different needs than NYPD's Counterterrorism Units.
Therefore, it is important that employers work with their employees to create fair and reasonable social media policies that protect an employee's right to privacy and balance that need with an employer's right to know. I predict that a case(s) regarding these issues will eventually reach the Supreme Court of the United States.
To learn more about the legal, political, and business ramifications of social media policies you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Sunday, February 20, 2011
Saturday, February 12, 2011
Legal Liabilities of Social Media Advertising Campaigns
There are many legal liability issues inherent with social media advertising campaigns. Some legal issues to be aware of include: copyright and trademark issues, privacy, FTC advertising guidelines and full disclosure violations, etc...
I recently attended a conference and one of the panels consisted of a group of marketing professionals. The marketers wanted to create an advertising campaign for a flat screen television company. The hypothetical promotion would encourage consumers to videotape themselves smashing their old tube television sets and then upload the video to a website. The flat screen television company would reward those who uploaded their television smashing videos with a new flat screen television. In addition, the consumer who had the "coolest" video would win $100,000.
At first glance, this hypothetical sounds like it would be a successful promotion. Who wouldn't want to watch a bunch of people smashing their television sets? This advertising campaign sounds like it may be inspired by a Gallagher (go to 7:00 in the clip) comedy routine and/or the Jackass television series/movie franchise.
Watching Gallagher smash watermelons and/or other fruits is still extremely funny. However, Gallagher is a "professional watermelon smasher" and comic and generally flying watermelon will not cause permanent damage to an audience member. In addition, audience members may be deemed to have assumed the risk of attending his show if they are hit with some flying watermelon or other related flying fruit. This type of scenario may be analogous to attending a baseball game and being hit with a foul ball.
Jackass was a television series (and later a movie franchise) on MTV that contained actors who performed interesting stunts. To reduce the possibility of lawsuits, MTV had disclaimers and warnings listed and mentioned before, during, and after each show. In addition, the television series did not encourage its viewers to perform the activities that were depicted.
In contrast to both Gallagher and Jackass, this hypothetical television advertising campaign encourages the destruction of a piece of electronic equipment that may contain dangerous chemicals and/or materials by consumers. This type of encouraged behavior may hurt consumers and/or others who are exposed to the encouraged activities.
Even though a company may put in place a waiver and/or other means to try limit their liability and/or to try to ensure that participants assume all risks associated with the advertising campaign, a lawyer for an injured participant may still file a lawsuit against the company and utilize a creative theory of liability. Therefore, before a company decides to do an advertising campaign with a social media component it should ask its legal department and/or outside legal counsel to fully review the proposal to ensure that it doesn't create any unforeseen potential legal liabilities.
To learn more about about the risks and unforeseen legal liabilities of your social media advertising campaigns you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
I recently attended a conference and one of the panels consisted of a group of marketing professionals. The marketers wanted to create an advertising campaign for a flat screen television company. The hypothetical promotion would encourage consumers to videotape themselves smashing their old tube television sets and then upload the video to a website. The flat screen television company would reward those who uploaded their television smashing videos with a new flat screen television. In addition, the consumer who had the "coolest" video would win $100,000.
At first glance, this hypothetical sounds like it would be a successful promotion. Who wouldn't want to watch a bunch of people smashing their television sets? This advertising campaign sounds like it may be inspired by a Gallagher (go to 7:00 in the clip) comedy routine and/or the Jackass television series/movie franchise.
Watching Gallagher smash watermelons and/or other fruits is still extremely funny. However, Gallagher is a "professional watermelon smasher" and comic and generally flying watermelon will not cause permanent damage to an audience member. In addition, audience members may be deemed to have assumed the risk of attending his show if they are hit with some flying watermelon or other related flying fruit. This type of scenario may be analogous to attending a baseball game and being hit with a foul ball.
Jackass was a television series (and later a movie franchise) on MTV that contained actors who performed interesting stunts. To reduce the possibility of lawsuits, MTV had disclaimers and warnings listed and mentioned before, during, and after each show. In addition, the television series did not encourage its viewers to perform the activities that were depicted.
In contrast to both Gallagher and Jackass, this hypothetical television advertising campaign encourages the destruction of a piece of electronic equipment that may contain dangerous chemicals and/or materials by consumers. This type of encouraged behavior may hurt consumers and/or others who are exposed to the encouraged activities.
Even though a company may put in place a waiver and/or other means to try limit their liability and/or to try to ensure that participants assume all risks associated with the advertising campaign, a lawyer for an injured participant may still file a lawsuit against the company and utilize a creative theory of liability. Therefore, before a company decides to do an advertising campaign with a social media component it should ask its legal department and/or outside legal counsel to fully review the proposal to ensure that it doesn't create any unforeseen potential legal liabilities.
To learn more about about the risks and unforeseen legal liabilities of your social media advertising campaigns you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, February 11, 2011
Did Social Media Cause Egypt's Mubarak To Step Down?
Was social media usage the main reason why Egypt's Mubarak resigned from the Presidency of Egypt? No. It was a combination of Mubarak's dictatorial rule, routine police brutality, a suspended constitution, and poor living conditions for the average Egyptian that fueled the revolution. However, social media platforms and technologies such as Twitter, Facebook, YouTube, and texting enabled the Egyptian people to political crowdsource and communicate with each other to discuss their unhappiness with Mubarak's 30 year reign and to coordinate a strategy to try to create change.
Social Media terrifies every single dictatorship in the Middle East along with China and Russia. When the U.S. and European news outlets started covering the beginning of the Egyptian protests against Mubarak's rule, I noticed that China's and Russia's main news outlets were relatively quiet. At first, I thought I may have been reviewing the wrong websites. However, soon after I observed this lack of coverage by these two countries I read an article that discussed this same observation.
The brutal killing and cover up of businessman Khaled Said in Egypt in June of 2010 was the spark that started the beginning of the end of Mubarak's rule. A leaked photo of Mr. Said's mutilated corpse along with Mr. Said's family and friend's persistence in trying to learn the truth about his death ignited the fire that eventually engulfed Mubarak. A Facebook page about Khaled Said enraged and united Egyptians against Mubarak's rule. The lessons learned from the failed Iranian Revolution after the 2009 elections, and from the recent Tunisian revolution emboldened millions of Egyptians.
In just 18 months, people in the Middle East have learned how to harness the power of social media to work to create political change. During this time, the economy has generally not been great throughout the world and people are more willing to push for institutional change when the economy is in poor shape. When times are prosperous people are less likely to protest and demand a change in leadership. However, when the average citizen is tired of poor living conditions they have nothing to lose to try to change their political system.
It is too soon to tell if the change that social media has helped to foment in Egypt will make the world a safer and more democratic place. I hope that Egypt's Social Media Revolution begins a domino effect that creates more democratic governments that share the same ideals with and are willing to partner with the United States to make the world a better place to live.
To learn more about the legal, business, and political ramifications of social media you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Social Media terrifies every single dictatorship in the Middle East along with China and Russia. When the U.S. and European news outlets started covering the beginning of the Egyptian protests against Mubarak's rule, I noticed that China's and Russia's main news outlets were relatively quiet. At first, I thought I may have been reviewing the wrong websites. However, soon after I observed this lack of coverage by these two countries I read an article that discussed this same observation.
The brutal killing and cover up of businessman Khaled Said in Egypt in June of 2010 was the spark that started the beginning of the end of Mubarak's rule. A leaked photo of Mr. Said's mutilated corpse along with Mr. Said's family and friend's persistence in trying to learn the truth about his death ignited the fire that eventually engulfed Mubarak. A Facebook page about Khaled Said enraged and united Egyptians against Mubarak's rule. The lessons learned from the failed Iranian Revolution after the 2009 elections, and from the recent Tunisian revolution emboldened millions of Egyptians.
In just 18 months, people in the Middle East have learned how to harness the power of social media to work to create political change. During this time, the economy has generally not been great throughout the world and people are more willing to push for institutional change when the economy is in poor shape. When times are prosperous people are less likely to protest and demand a change in leadership. However, when the average citizen is tired of poor living conditions they have nothing to lose to try to change their political system.
It is too soon to tell if the change that social media has helped to foment in Egypt will make the world a safer and more democratic place. I hope that Egypt's Social Media Revolution begins a domino effect that creates more democratic governments that share the same ideals with and are willing to partner with the United States to make the world a better place to live.
To learn more about the legal, business, and political ramifications of social media you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, February 2, 2011
Social Media Credential Fraud
If you are reading this blog post there is a good possibility you have heard of the following social media terms: Tweet, To Friend, Un-Friend, To Follow, To Un-Follow, etc...However, have you ever heard of "Social Media Credential Fraud"? Is "Social Media Credential Fraud" a mythical term or is it a new type of fraud that is being perpetuated by some social media users who are trying to be someone whom they are not? Popular. Seen as an expert. Or both.
I discussed this topic while being part of a panel at LegalTech New York 2011 that covered social media branding and ethical issues. During the session, I posed the following hypothetical: Is it unethical for a Twitter user who utilizes a Twitter account for commercial purposes to intentionally follow someone on Twitter, only to stop following that person once a follow back has been received for the specific purpose of inflating one's follower numbers? Is this practice just 1) Bad Manners; or 2) Mere Puffery; or 3) Misleading and/or deceptive under the FTC Advertising Guidelines and/or a Lawyer's Code of Professional Responsibility (if the Twitter user is also a lawyer)?
For example, what if a Twitter user followed 100,000 people, and 50,000 of those people followed the Twitter user back based upon the initial follow. Then the Twitter user systematically un-followed 95,000 of those people so his following to follower number has a ratio of 1:10. After achieving a celebrity like Twitter following to follower ratio, the Twitter user then advertises that he is an expert in his profession and as part of his sales pitch points to his Twitter following to follower ratio or advertises he has a certain number of Twitter followers. Is this practice ethical or is it legal?
This scenario sounds like it could be something that happened in the movie Mean Girls. Unfortunately, it is a behavior that some Twitter users engage in. The FTC Dot Com Disclosures: Information About Advertising states, "The FTC Act's prohibition on unfair or deceptive acts or practices broadly covers advertising claims, marketing and promotional activities, and sales practices in general. The FTC's Advertising and Marketing Guidance states, "under the law, claims in advertisements must be truthful, cannot be deceptive or unfair, and must be evidence-based. For some specialized products or services, additional rules may apply." Since a Twitter account may be considered an advertising platform, the FTC's Dot Com Disclosures may apply to your Tweets.
In the legal profession, lawyers must follow their jurisdiction's Code of Professional Responsibility. For example, Rule 7.1 of New York's Rules of Professional Conduct State: "(a) A lawyer or law firm shall not use or disseminate or participate in the use or dissemination of any advertisement that: (1) contains statements or claims that are false, deceptive or misleading; or (2) violates a Rule." Therefore, a lawyer's Twitter account may be perceived as an advertisement even if it is only used for personal purposes. What if the Twitter account is utilized for both commercial and personal activities? Social Media has blurred the lines between what some people may see as personal and what others may interpret as your professional message. Therefore, it is imperative to understand that your social media activity may have both ethical and legal consequences.
The bottom line is that reputation building and expertise takes years to achieve and that short cuts in the long run will fail. In the 1987 hit movie, "Can't Buy Me Love" Ronald Miller, an unpopular kid in high school paid the most popular girl in high school Cindy Mancini $1,000 to pretend that she was his girlfriend for a month. Ronald's hypothesis was that if Cindy was his girlfriend he would become popular. Overnight, Ronald went from "totally geek" to "totally sheik". However, his new found popularity was short-lived because as soon as the rest of the school found out that he had to pay Cindy to pretend to be his girlfriend (analogous on Twitter to paying a service to obtain followers on your behalf or following tens of thousands of people and then un-following them once you receive a follow back) Ronald's brand was destroyed. Ronald learned in high school that there are no short cuts in reputation building.
The bottom line is acting like a "Social Media Ronald Miller" will not succeed in the long run. While utilizing social media one must understand there are ethical and legal ramifications of what you post and how you utilize each platform.
To learn more about social media legal, branding, and ethical issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
I discussed this topic while being part of a panel at LegalTech New York 2011 that covered social media branding and ethical issues. During the session, I posed the following hypothetical: Is it unethical for a Twitter user who utilizes a Twitter account for commercial purposes to intentionally follow someone on Twitter, only to stop following that person once a follow back has been received for the specific purpose of inflating one's follower numbers? Is this practice just 1) Bad Manners; or 2) Mere Puffery; or 3) Misleading and/or deceptive under the FTC Advertising Guidelines and/or a Lawyer's Code of Professional Responsibility (if the Twitter user is also a lawyer)?
For example, what if a Twitter user followed 100,000 people, and 50,000 of those people followed the Twitter user back based upon the initial follow. Then the Twitter user systematically un-followed 95,000 of those people so his following to follower number has a ratio of 1:10. After achieving a celebrity like Twitter following to follower ratio, the Twitter user then advertises that he is an expert in his profession and as part of his sales pitch points to his Twitter following to follower ratio or advertises he has a certain number of Twitter followers. Is this practice ethical or is it legal?
This scenario sounds like it could be something that happened in the movie Mean Girls. Unfortunately, it is a behavior that some Twitter users engage in. The FTC Dot Com Disclosures: Information About Advertising states, "The FTC Act's prohibition on unfair or deceptive acts or practices broadly covers advertising claims, marketing and promotional activities, and sales practices in general. The FTC's Advertising and Marketing Guidance states, "under the law, claims in advertisements must be truthful, cannot be deceptive or unfair, and must be evidence-based. For some specialized products or services, additional rules may apply." Since a Twitter account may be considered an advertising platform, the FTC's Dot Com Disclosures may apply to your Tweets.
In the legal profession, lawyers must follow their jurisdiction's Code of Professional Responsibility. For example, Rule 7.1 of New York's Rules of Professional Conduct State: "(a) A lawyer or law firm shall not use or disseminate or participate in the use or dissemination of any advertisement that: (1) contains statements or claims that are false, deceptive or misleading; or (2) violates a Rule." Therefore, a lawyer's Twitter account may be perceived as an advertisement even if it is only used for personal purposes. What if the Twitter account is utilized for both commercial and personal activities? Social Media has blurred the lines between what some people may see as personal and what others may interpret as your professional message. Therefore, it is imperative to understand that your social media activity may have both ethical and legal consequences.
The bottom line is that reputation building and expertise takes years to achieve and that short cuts in the long run will fail. In the 1987 hit movie, "Can't Buy Me Love" Ronald Miller, an unpopular kid in high school paid the most popular girl in high school Cindy Mancini $1,000 to pretend that she was his girlfriend for a month. Ronald's hypothesis was that if Cindy was his girlfriend he would become popular. Overnight, Ronald went from "totally geek" to "totally sheik". However, his new found popularity was short-lived because as soon as the rest of the school found out that he had to pay Cindy to pretend to be his girlfriend (analogous on Twitter to paying a service to obtain followers on your behalf or following tens of thousands of people and then un-following them once you receive a follow back) Ronald's brand was destroyed. Ronald learned in high school that there are no short cuts in reputation building.
The bottom line is acting like a "Social Media Ronald Miller" will not succeed in the long run. While utilizing social media one must understand there are ethical and legal ramifications of what you post and how you utilize each platform.
To learn more about social media legal, branding, and ethical issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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