California: First state to pass comprehensive social media privacy legislation

California has become the first state to pass social media privacy legislation that protects employers/employees/job applicants and schools/students/student applicants. According to The Recorder, California has passed AB 1844 which prohibits employers from requiring access to their employees' or job applicants' personal social media credentials and personal password protected digital content. Last week, California passed student social media privacy legislation that would prohibit post-secondary educational institutions from requiring access to their students' or student applicants' personal social media credentials and personal password protected digital content.

Earlier this year, Maryland and Illinois enacted social media privacy legislation that may protect employers from social media related lawsuits while also protecting the personal privacy of employees and job applicants. Last month, Delaware enacted social media privacy legislation that may protect schools against social media related lawsuits while also protecting the personal privacy of students and student applicants. However, California is the first state to pass comprehensive legislation that protects employers/employees/job applicants and schools/students/student applicants. If Governor Brown signs both SB 1349 and AB 1844, California will become the first state to enact across the board social media privacy legislation.

AB 1844 is a huge win for the business community because it may provide California businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' personal password protected digital content. This legislation may collectively save California businesses tens of millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save California businesses tens of millions of dollars per year on cyber liability insurance premiums that would accompany a duty to monitor employees in the digital/social media space.

With access comes responsibility. Since California businesses will not have access to their employees' personal digital content they will not become responsible for their employees' personal social media behavior. Employers do not have a duty to monitor their employees' activities outside of work in the real world so employers should not create a duty to monitor their employees' non-corporate digital activities.

This legislation is also a major victory for employees and job applicants. California employers may no longer ask employees or job applicants to provide access to their personal digital or social media accounts. For example, during a job interview an employer may not request an applicant log into their personal Facebook account or to "Facebook Friend" a hiring manager. In addition, an employer may not require an employee provide access to their personal password protected digital accounts. Job applicants and employees must understand that they should still be careful about the content they post online, utilize the proper privacy settings, and carefully screen who they "Friend" online.


(Full Disclosure: I advised California Assembly Member Campos' office on this legislation.)

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Does Prince Harry have a claim for invasion of privacy?

Some naked photos of the United Kingdom's Prince Harry have been leaked online. There are rumors that there is also video of Prince Harry in the buff quietly being shopped to the highest bidder. These photos and the video were allegedly taken in the privacy of Prince Harry's private hotel suite in Las Vegas, Nevada.

In Montesan v. Donrey Media Group, 668 P.2d 1081 (1983), Nevada reiterated that it has impliedly recognized an action for invasion of privacy. According to the Second Restatement of Torts, § 652D (1977), in order to maintain a cause of action for invasion of privacy it must be proven that a public disclosure of private facts has occurred which would be offensive and objectionble to a person of ordinary sensibilities.

Does Prince Harry have an expectation of privacy in his private hotel room? Did Prince Harry give up his right to privacy when he invited others into his personal hotel suite? Could the person(s) who are allegedly shopping these photos and/or videos be charged with state and/or federal crimes? Does Prince Harry have a civil cause of action against the person(s) who shot the video?

In the criminal case against Dharun Ravi for webcasting a sexual encounter that his roommate had with another person in the privacy of their shared Rutgers University dorm room Ravi was found guilty of invasion of privacy. Since people generally have an expectation of privacy in their dorm rooms and own homes should they also have an expectation of privacy in their hotel suites?

How far should this right extend in the Social Media Age?

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

South Korea bans social media account registration

South Korea's highest court unanimously ruled that South Koreans are not required to register their user names or other online account information in order to make comments on the Internet. This reaffirms that South Korea will protect freedom of speech on social media and other online platforms.

When applying this law to universities in South Korea, it appears to mean that public school students are not required provide their schools their social media user names or other digital account information. In a democratic society, public schools may not require their students to register their Facebook accounts, Twitter handles, and/or other social media credentials in order to obtain or keep their scholarships. It is clearly unconstitutional for a U.S. public university to demand that their students register their digital or social media usernames or online persona with a university or a third party in order to keep their scholarship or participate in extracurricular activities. This protection extends to all students including student-athletes and other students on scholarship.

Unfortunately, there are multiple U.S. public colleges and universities that are following the advice of self-described social media consultants who are pitching schools on requiring their student-athletes to register their social media usernames with their schools and/or Facebook Friend a coach and/or download social media monitoring software so the school may identify the student's online persona and track their online behavior.

Any social media consultant that advocates schools utilize a social media monitoring service to track their student-athletes' online behavior is a snake oil salesman that should not be trusted because this advice may create tremendous legal liability for those universities and individuals who follow this advice.

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Gay Federal Employee Allegedly Fired For Facebook Like Sues

A former federal employee has filed a lawsuit alleging that he was fired because of a Facebook Like. This is reminiscent of another recent lawsuit where an employee alleges he was fired for Facebook Liking the page of his supervisor's political opponent.

If employers have access to their employee's social media accounts and they learn about an employee's protected status and they fire an employee based upon this information this may open the employer up to tremendous legal liability.

In schools, requiring student-athletes to provide access to their social media accounts may also open up schools to discrimination claims. What would happen if a coach finds out one of his student-athletes is gay because of a Facebook Like or the content posted by one of the student-athlete's Facebook Friends and then the coach discriminates against the student-athlete?

The above mentioned examples demonstrate why employers and schools should not want to be able to freely access their employees' or students' social media content. If employers and schools are unable to access this information this may lower the number of discrimination allegations and/or lawsuits. Unfortunately, there are still employers and schools that don't understand these issues and because of this lack of understanding state and federal digital media privacy laws are needed to protect employers, employees, job applicants, schools, students, and student applicants.

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

California passes student social media privacy legislation

California has passed Senate Bill 1349. The bill is a win for California schools, taxpayers, students, and prospective students. If Governor Brown signs the bill it may help increase enrollment in California schools because it signals to the entire world that California is a leader in digital privacy and common sense technology law.

The legislation does not appear to have any implementation costs for California and may save California schools and taxpayers millions of dollars per year. According to the New York Times, it may cost approximately $10,000 per year to social media monitor a small segment of a school's student population. There appears to be more than 150 4-year post secondary academic institutions based in California. Therefore, if you multiply 150 x $10,000 this may save California 4-year post secondary schools at least $1.5 million dollars per year. This does not factor in some of the potential savings from not needing increased cyber liability insurance policies, legal fees to review the social media monitoring contracts between the schools and monitoring companies, and the cost to defend against negligent social media monitoring lawsuits or the failure to social media monitor lawsuits. Overall, the cost savings to California post secondary schools and taxpayers may exceed $5 million per year.

Any company that approaches NCAA sanctioned schools to sell social media monitoring services is selling a legal liability time bomb. Yesterday, there was a very troubling Louisville Courier-Journal report that stated that the University of Kentucky via a company called Centrix Social was social media monitoring some of its students and flagging them for using the term "Arab" or "Muslim" online. Centrix Social was recently acquired by Varsity Monitor who according to Deadspin.com appears to have some ethical challenges.

If SB 1349 is enacted, it may protect California schools from millions of dollars in additional compliance and regulatory costs, and millions of dollars in potential legal liability costs associated with social media related lawsuits.

(Full Disclosure: I advised California Sen. Yee's office on this legislation.)

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Will the International Olympic Committee strip Michael Phelps of his gold medals because of leaked Louis Vuitton photos?

On June 28, 2011, I was one of the first to analyze the new International Olympic Committee's social media regulations. When the regulations initially were released, I immediately noticed that there may some major challenges with the policies. At that time I stated, "In general, the IOC's Social Media Policy appears to be a good starting point for discussion. However, the points I mention above need to be addressed before the Games begin to lessen the likeliehood that social media compliance misunderstandings may occur."

During a conversation I had with ReadWriteWeb that was published on June 26, 2012, I stated that the "IOC’s social media policy is, at best, a work in progress, and that both official Olympic sponsors and the IOC will likely learn some hard lessons as the 2012 games progress." For example, under the IOC's Rule 40 (their social media regulations) Michael Phelps could be stripped of all of his medals because during the Olympics some photographs were leaked online of him that also contained Louis Vuitton merchandise and Louis Vuitton was not an official Olympic sponsor.

I highly doubt that Michael Phelps will be stripped of his 2012 Olympic medals because the negative press would create a huge black mark on a highly successful Olympic Games. However, as our world becomes more digitized the IOC must prepare for the possibility that similar situations may occur in the future and adjust their social media regulations accordingly before the 2014 Winter Olympics.

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Has Facebook created a legal duty to monitor for illegal activity?

Does Facebook have a legal duty to monitor for illegal activity on its website? Facebook is an international company with its headquarters in California. However, Facebook must comply with the laws of every jurisdiction where it operates.

In Australia, Facebook was recently pressured to remove a page that was alleged racist. At first, it appeared that Facebook claimed that because it is based in California it did not have to comply with Australia's anti-discrimination laws. However, after more public and governmental pressure Facebook eventually removed the controversial page.

A series of Facebook chats in Canada recently caught the attention of Facebook's staff who reported it to Winnipeg law enforcement officials. Detectives arrested a suspect and he is now facing charges of sexual assault, sexual interference, and luring. It may have been noble of Facebook to report an alleged criminal act but what would have happened if Facebook knew about the chats but didn't report them?

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Liking a Facebook Page May Be Constitutionally Protected Free Speech

Social Media has become a major free speech battleground around the world. For example, earlier this year Pakistan banned Twitter for a period of time because Twitter refused to delete tweets that were alleged to be blasphemy.

In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.

These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.

In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."

The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.

The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Australia Rules Social Media Brand Pages Are Ads

In Australia, social media is no longer considered just a medium to connect with your friends or family. It has now been officially recognized as a form of advertising that should be treated in the same manner as other advertising platforms.

According to the Sydney Morning Herald, a new ruling may require Australian companies to vet comments posted by the public on their social media pages to ensure they are not sexist, racist or factually inaccurate. Companies doing business in Australia may be fined for comments that appear on their social media brand pages. The Australian Standards Board "determined that the provisions of the Code (advertising) apply to an advertiser’s Facebook page."

The increasing regulation of social and digital media is expected. It is the natural progression of the acceptance of social media as a legitimate advertising and monetization avenue for brands. Last year, the U.S. Better Business Bureau took a stand against unethical social media advertising practices and this occurred soon after the FTC started to crack down on fake online reviews.

Therefore, I believe the Federal Trade Commission may soon increase its social media advertising enforcement.

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

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Illinois Enacts Social Media Privacy Law

Illinois has become the third state to enact a law that pertains to social media privacy. Earlier this year, Maryland enacted a law that protects employers, employees, and job applicants and Delaware enacted a law that protects schools, students, and prospective students.

HB 3782 is now Public Act 097-0875 and will go into effect on January 1, 2013. The bill is modeled after Maryland's groundbreaking social media privacy legislation that became the first law in the country to specifically address an employee's digital right to privacy. At least 15 states have introduced social media privacy legislation along with Congress.

Employees and job applicants should still watch what they post online because anyone who has access to their posts may be able to re-post them or print them out for others to see. While an Illinois employer may not be able to require that an employee or job applicant provide access to one's password protected Facebook page or content as a condition for employment, one of your Facebook Friends can still freely contact your employer and send them your password protected digital content.

 

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.