University of North Carolina's Student-Athlete Social Media Policy May Be Unconstitutional

The University of North Carolina (UNC) recently updated its Department of Athletics Policy on Student-Athlete Social Networking and Media Use. It appears that UNC revised its student-athlete social media policy as part of its response to the NCAA Notice of Allegations (NOA) that alleged that it failed to monitor the social media activity of its student-athletes. According to an NCAA spokesman, the NCAA does not require its members to monitor the social media activity of its members; it only encourages schools to do so.

UNC's response to the NCAA NOA appears to agree with 8 of the 9 allegations. UNC appears to dispute the allegation that it failed to monitor the social media activity of its student-athletes. UNC's new student-athlete social media policy may have been created to try to mitigate some of the possible NCAA sanctions that may arise from this matter.

UNC is a public institution and therefore the 4th amendment of the U.S. Constitution applies and protects students from unreasonable searches and seizures by UNC. According to UNC's new social media policy, "Each team must identify at least one coach or administrator who is responsible for having access to and regularly monitoring the content of team members’ social networking sites and postings (“Team Monitor”). The Department of Athletics also reserves the right to have other staff members review and/or monitor student-athletes’ social networking sites and postings."

Students who participate in extracurricular activities have a diminished expectation of privacy compared to other students; however, that diminished expectation of privacy does not enable the state to access and monitor the private electronic content of student-athletes to ensure that there are no possible violations of the law, UNC policies, NCAA violations, etc... Students have a reasonable expectation of privacy for their non-public electronic communications. If UNC has a right to access the private social media posts of its student-athletes then what will stop UNC from claiming it has the right to access and monitor private email accounts, voice-mail messages, etc... and installing eavesdropping equipment into off-campus apartments?

Therefore, I believe UNC's new social media policy may violate the 1st, 4th, and 14th Amendments of the U.S. Constitution. I urge UNC to revise its new student-athlete social media policy before UNC has to utilize resources defending an unconstitutional policy that may create mistrust between its student-athletes and the university and tremendous legal liability issues.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The FTC May Soon Crack Down On Social Media Credential Fraud

The FTC may soon crack down on Social Media Credential Fraud because it is a growing problem that will drastically harm monetization opportunities in the social media industry. Social Media Credential Fraud may occur when someone utilizes social media to create a false impression that they are an expert in their profession for commercial gain. Under the FTC's Advertising Regulations, it is crystal clear that engaging in unfair or deceptive acts or practices is unlawful.

This past summer the FTC sought input for revising its guidance to business about disclosures for online advertising. I submitted a comment requesting that the FTC take action against those who are practicing Social Media Credential Fraud.

On April 18, 2011, I stated that non-practicing attorney/self-described social media evangelist Adrian Dayton has a Twitter account that appears to indicate that he has a rock star like Twitter following to follower ratio. In this post, I discussed how Mr. Dayton had previously talked about why he un-followed 47,000 people on Twitter. The reason he gave for un-following almost 50,000 people went something along the lines he no longer could focus on new followers or qualified prospects because they were lost in the noise.

At that time I stated: "Having to follow at least 54,533 people in order to receive only 41,026 followers in return is not very "expert like." Mr. Dayton's Twitter activity demonstrates that he is a social media expert at one thing: following tens of thousands of people on Twitter and un-following tens of thousands of people on Twitter. That is it."

On January 13, 2011, Mr. Dayton was following 4,417 and had 41,049 followers.



On September 13, 2011, Mr. Dayton was following 8,613 but only had 41,203 followers in return.



During an 8 month period, it appears that Mr. Dayton increased the number of people he followed on Twitter from 4,417 to 8,613 (an increase of 4,196). However, during this time frame it appears that Mr. Dayton's number of followers has only gone up from 41,049 to 41,203. This is a net plus of a paltry 154 new followers. Are these the numbers of a bona fide social media strategist or evangelist?

Why would Mr. Dayton want to follow 4,000+ more people when he previously stated that he un-followed thousands of people because [he] was following so many people that [his] Twitter stream was filled with content that was at best irrelevant and at worse distracting? Could part of the answer be that Mr. Dayton is trying to keep at least 41,000 followers?

If you divide 4,196 by 154 it appears that Mr. Dayton may need to follow 27.25 people before 1 person will follow him in return. If you multiply 41,203 by 27.25 that equals 1,122,782. Therefore, it is possible that Mr. Dayton has had to follow 1 million plus people in order to receive only 41,000+ followers in return. Since Mr. Dayton's Twitter popularity is presumably at an all-time high now he may have previously needed to follow 30, 40, or 50 people before 1 person followed him back.

As I stated on April 18, 2011, I challenge Mr. Dayton to dispute my findings. If I was previously wrong Mr. Dayton would have publicly disputed me and/or threatened to sue me in the same manner that it appears he previously threatened lawyer Brian Tannebaum who pointed out some issues with Mr. Dayton's background.

Therefore, I want to reiterate, caveat emptor when hiring "experts". Don't be a sucker. At least perform a Google search to learn more about an "expert's" credentials. Just because someone calls himself/herself an expert and/or has a social media profile that appears "expert like" that does not make it so. As Malcolm Gladwell states, it takes at least 10,000 hours to master a craft.

To learn how to avoid violating the FTC Advertising Regulations you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

September 11, 2001, Social Media Conspiracy Theories, and the Law

September 11, 2011 marks the 10th anniversary of the worst terrorist attack in U.S. history. On September 11, 2001, 19 terrorists affiliated with al-Qaeda attacked the United States without any provocation. Ten years ago, I was living several blocks away from the World Trade Center and I witnessed first hand the tragedy and aftermath of this cowardly attack against our country. Due to the destruction that was caused, I became displaced from my home.

To my generation, Sept. 11th means what December 7th meant to my grandfather's generation. As President Roosevelt stated during a joint session of Congress on December 8, 1941, December 7, 1941 is a date that will live in infamy. President Bush's first official address post the September 11, 2001 attacks summed up our country's initial reaction to this act of cowardice.

Even though it is well established through eyewitness testimony, the physical evidence, and litigation that Islamic terrorists were behind the September 11, 2001 attacks, there are multiple social media pages, posts, videos, websites, etc... that claim that the U.S. and/or its allies attacked the U.S. to promote a certain agenda. Popular Mechanics did a cover story that debunked the 9/11 conspiracy theories in 2005 and recently created a book based upon their research. The bottom line is that Popular Mechanics pokes holes through the fantasies of the conspiracy theorists. I know what I witnessed that day. All five of my senses experienced the horror of that day. I highly doubt any of the self-professed conspiracy theorists witnessed in person the events of that day.

Utilizing social media to promote debunked theories regarding the 9/11 attacks is what cowards do. I challenge 9/11 conspiracy promoters to prove their theories because none of the conspiracy theories would hold up in court of law.

To learn how to uncover social media liars and con artists you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

ESPN's New Social Media Policy Weakness Demonstrated By Peyton Manning Injury Story

ESPN's updated Social Media Policy went into effect approximately two weeks ago without much attention. On August 26, 2011, a few days after ESPN's new rules were implemented I stated,

During the last several years, many major news stories have been reported first on Twitter. Some of these stories include: the 2008 Mumbai terrorist attacks, the 2009 Hudson River plane crash, and the death of Osama Bin Laden. During the NFL lockout earlier this year, sports reporters regularly posted breaking news updates on Twitter and then followed them up by more in depth articles at a later time.

Therefore, unless ESPN eliminates its "Do not break news on Twitter" guidelines, ESPN's reporters will risk other news outlets breaking news before ESPN has the ability to do so. The leaders of ESPN may want to rethink their new policy because as it stands it only hurts its ability to compete in the Social Media Age."

On September 4, 2011, John Michael Vincent of ESPN 1070 the Fan in Indianapolis tweeted, "Been told by multi sources that QB P Manning needs a 2nd neck procedure. Will remain out indefinitely.Called #colts and waiting on response."

This was a great scoop that sent the media and NFL fans into a frenzy trying to obtain official confirmation from the Indianapolis Colts about Peyton Manning's status for the season. Indianapolis was forced to issue a statement within 24 hours of Mr. Vincent's Tweet to discuss the matter. Fortunately for ESPN, Mr. Vincent works for them and ESPN as an organization may be credited for this breaking news.

What if Mr. Vincent waited until his radio show to discuss this breaking news and another reporter from a competing organization or a random social media user broke the story first because ESPN wants its talent to discuss breaking news on their platforms before using social media to disseminate information? A scoop like this does not happen every day and this is why ESPN must reevaluate its online policies to better reflect the reality of the Social Media Age.

To learn how your organization may create a Social Media Policy that does not harm your brand or bottom line you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Spying on NCAA Student-Athletes By Utilizing Social Media Monitoring Firms May Be Unconstitutional

As we begin the NCAA college football season, student-athlete social media usage is being hotly debated and dissected by the media. Some are advocating social media bans while others are recommending some of our country's future leaders to expose to third-party companies and/or school compliance departments their non-public private online interactions with others. After reading multiple articles from numerous major news outlets, I realize that some members of the media do not understand the legal issues involved with social media.

Monitoring the public social media posts of student-athletes is legal. In fact, it may be advisable to check up on a student-athlete's public online posts in the same manner as his/her real world activity. Checking up on a student in the real world encompasses face to face meetings, phone calls, class and study hall attendance record review, grade point average eligibility requirements, etc...

A couple months ago, Crain's Business Insurance discussed the legal liabilities that colleges and universities may encounter if they implement social media monitoring programs. None of the lawyers or risk professionals quoted in the Crain's Business Insurance article advocated that schools implement social media monitoring programs. In the same article an NCAA spokesperson stated, "the NCAA does not require its member schools to monitor the social media accounts of student athletes."

On June 22, 2011, and June 28, 2011 I touched upon the legality of utilizing social media monitoring services on student-athletes. The 1st, 4th, and 14th amendments of the U.S. Constitution may be violated along with numerous state and federal laws, and there may be discrimination claims when a public school's compliance department requires a student-athlete to participate in a social media monitoring program.

To better understand the issues involved with social media monitoring of private social media content it is essential to explain some of the details. For example, one social media monitoring company requires student-athletes to install social media monitoring and archiving software onto their personal electronic devices. Another company requires that student-athletes Facebook Friend them and/or allow them to follow a student's protected Twitter account. These companies then capture the student's social media activity and send it to the schools who hire them.

In addition to monitoring a student's private social media content these companies and/or a school's compliance department may also archive a student's private social media content for 4-7+ years. Therefore, instead of one entry point where data may be exposed there are at least 3 possible data leakage opportunities where a student's (and his/her online friends) private posts, photographs, messages, etc... may be disseminated to those who are not the intended recipients.

One of the social media monitoring firms boasts that its software has found numerous photographs of students in uncompromising positions. Of course it would find these photographs on students' private social media pages because students may have a reasonable expectation of privacy on their private social media accounts. This social media monitoring company also monetizes students' copyrighted photos by uploading them onto its corporate website as a selling point to prospective clients as to what material its service has found.

I highly doubt any student would under their own free will and accord install an invasive software program onto their personal computer that would enable a third-party to view, capture, archive, and monetize their or their friends' personal photographs and social media content. The social media monitoring companies that require students to install monitoring programs onto their personal electronic devices protect themselves legally with the terms of service in their user agreements that students must accept before installing their software and/or through the contracts it signs with athletic compliance departments.

Another method used to gain access to student-athletes' private social media posts requires student-athletes to Facebook Friend a third-party social media monitoring company and/or its school's compliance department. If a public college or university requires its student-athletes to Facebook Friend a third-party and/or its compliance department it may be deemed an unreasonable search and seizure under the 4th amendment. Student-Athletes may have a reasonable expectation of privacy if their social media page is set to private and not available for all to access.

The activities described above are an outrageous disregard for the U.S. Constitution and numerous federal and state laws. Public schools that require their students-athletes to install social media monitoring software onto their personal computers and/or require student-athletes to provide access to their non-public social media pages to their compliance departments directly or via third-parties may already be facing tremendous legal liability. The companies who are providing social media monitoring services may also have significant legal liability challenges ahead.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Corporate Counsel's IP Trademark, Copyright & Licensing Forum in New York City

ALM's Corporate Counsel is hosting a conference focused on the legal issues that are inherent with trademark, copyright and licensing. The conference will be held on September 14, and 15th at the Harvard Club of New York City. I have attended several of ALM's intellectual property conferences and each time they have covered very timely topics and have had outstanding faculty.

Some of the topics that will be covered include: trademark enforcement in a global economy, managing intellectual property as an asset, new generic top level domain names, and protecting your brand in the digital age. Some of the companies who will be presenting include: Playboy Enterprises, Inc., ABC, Inc., The New York Times, ESPN, and Macy's.

To learn more about the conference here is the link.

[Full Disclosure-Shear on Social Media Law is part of ALM's Law.com Blog Network]

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.