California is the first state to enact comprehensive social media privacy legislation

Governor Jerry Brown of California has announced that he has signed California SB 1349 and California AB 1844.  California has now become the first state in the country to enact comprehensive social media privacy legislation.

Earlier this year, Maryland became the first state to enact social media privacy legislation that protects employees' digital privacy while also protecting employers from frivolous social media related lawsuits.  Soon after, Delaware enacted social media privacy legislation that protects college students and post-secondary schools. In August, Illinois enacted legislation that protects employees and employers.

With the enactment of California's SB 1349, California becomes the second state to protect the social media privacy of post-secondary students which may also protect California schools from frivolous social media related lawsuits and snake oil salesmen who are pitching schools on the need for costly social media monitoring programs that are legal liability time bombs.  On August 21, 2012, I stated,
"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."

With the enactment of California's AB 1844, California becomes the third state to protect the social media privacy rights of employees which may also protect California employers from frivolous social media related lawsuits.  On August 30, 2012, I sated, "
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.

The bottom line is that California is leading the way in the enactment social media privacy legislation that protects schools, students, prospective students, employers, employees, and job applicants.

(Full Disclosure: I advised California State Senator Yee's office on SB 1349 and Assembly Member Campos' office AB 1844.)

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.

U.S. Court: Student-Athlete Social Media Monitoring Violates the 1st and 4th Amendment

A U.S. District Court in Minnesota has stated that public schools that require access to their students' password protected digital content are violating their students' 1st and 4th Amendment rights. In R.S. ex rel. S.S. v. Minnewaska Area Dist. No 2149 2012 WL 3870868, a student was allegedly intimidated into turning over her Facebook username and password, and her personal email username and password so the school could view her password protected digital content for references to a hall monitor whom the student felt was treating her unfairly.

On June 22, 2011, I stated that if the NCAA requires its students to turn over their social media credentials, "The NCAA is going down a very slippery slope that has major First Amendment and privacy implications. I believe the NCAA should rethink its social media compliance allegations against UNC."

and

on September 27, 2011, I stated "I believe UNC's new social media policy may violate the 1st, 4th, and 14th Amendments of the U.S. Constitution" because UNC's policy requires their student-athletes to provide the school access to their password protected digital content.

Public schools that require any of their students to register their social media usernames, or to provide access to their password protected digital content via required Facebook Friending or the installation of a third-party software application for any reason are in clear violation of the 1st and 4th Amendment. Therefore, any school that utilizes a social media monitoring company to track their student-athletes online may want to change their policy immediately before their legal liability exponentially increases.

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.

Twitter Hands Over Occupy Wall Street Tweets

According to The Associated Press, Twitter has complied with a judge's order to hand over the Tweets of an Occupy Wall Street protestor. Twitter was ordered by Judge Matthew Sciarrino Jr. to turn over the information by today or face steep fines if it refused to do so.

On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.

On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.

On September 11, 2012, I stated, "while I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users."

There may be future situations where the facts may better support an expectation of privacy for the Tweeter. However, it appears that the Tweets requested by the Manhattan District Attorney were intended for the entire world to view after they were posted. Since the account that posted the requested Tweets did not activate its privacy settings, I believe it is very difficult to successfully argue that there is an expectation of privacy for the Tweets in question.

To learn how social media intersects with the law you may contact me at www.shearlaw.com.

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

NYPD drafts social media investigation rules

According to the New York Daily News, the New York City Police Department has created official rules on how to utilize social media to investigate potential criminal activity. Since the NYPD developed CompStat, it has been recognized as a leader in utilizing new digital technologies for law enforcement.

The New York Daily News states that under the new rules, NYPD "officers involved in probes involving social media may register their aliases with the department and use a department-issued laptop whose Internet-access card can't be traced back to the NYPD."

In general, I believe that the NYPD should take their rules that govern their activities offline and transfer them online. Since police officers go under cover to fight crime in the real world they should be able to do the same in the digital world. However, if a potential suspect refuses to provide access to an under cover officer via turning down a Facebook Friend request or by changing his privacy settings, the NYPD should then be required to follow the proper legal channels to obtain access to the password protected digital content.

There needs to be an appropriate balance between the needs of law enforcement and the right to privacy. As more police departments follow the NYPD's lead, there may be more opportunities to determine how to balance these issues.

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.

Twitter must produce Occupy Wall Street Tweets

Twitter has been ordered to turn over the public Tweets of Occupy Wall Street protestor Malcolm Harris. The ruling is not surprising since the Tweets were previously public and anyone with Internet access could view them. The Tweets are no longer available online; however, they have been saved on Twitter's servers. Twitter and Harris' attorney have been trying to quash the Manhattan district attorney's subpoena demanding the Tweets but have been unsuccessful.

On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.

On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.

While I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users.

To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.

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

Will Australia's proposed digital data retention law put its citizens at risk?

Governments around the world are trying to determine how to implement digital public policy that takes into account how people are utilizing social media and other new technology platforms. Unfortunately, some lawmakers and governments are making proposals that may have unintended side effects.

For example, the Australian government recently proposed a digital data retention law that may create an undue burden on Internet service providers and technology companies. In addition, this proposal sharply curtails Internet users' digital privacy and creates more opportunities for cyber criminals. According to Computerworld, if enacted the new law would require technology companies to retain their users' data for up to two years which may include their customers' web surfing history information.

Putting aside the privacy issues, the Australian government may not realize that the more data a company is required to collect the greater its compliance costs and cyber liability insurance premiums. More data retention means increased server costs, higher electricity bills, greater security costs, etc....

While the intention of the proposed law is noble in that the government believes the law would assist in fighting crime, there may be some unintended side effects. When companies collect more data about their customers they become bigger targets for cyber criminals.

Therefore, it is imperative for governments to create sound digital public policy that properly weighs all of these concerns.

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.

10 tips to determine if a sports social media consultant is a fraud

In the past couple of years, multiple consulting companies have suddenly appeared on the scene to claim they are sports social media experts, gurus, leaders, trainers, etc... These firms are pitching colleges and universities to hire them to monitor their student-athletes' Tweets, Facebook posts, YouTube videos, and/or to "educate" student-athletes, coaches, administrators, etc... about social media matters.

To claim one is a sports social media consultant the barrier to entry is very low. From looking at the lack of credentials from most of those selling themselves as social media experts it appears that the only tools needed are: Internet and phone access, and a Slideshare account. With these three things you can create a free or low cost website and/or a free blog, open a free Twitter account, and create social media presentations based upon the work of others. Some of these "self anointed social media experts" may also buy a software package or create an application to track the online activities of student-athletes that may create tremendous legal problems for the schools that utilize these programs.

The Tweets, blog posts, and presentations of these self-called experts may appear to indicate that these consultants are the real McCoy. However, once due diligence is performed on these "social media experts" it becomes evident that almost none of them have any bona fide credentials or knowledge that demonstrates they should be advising NCAA schools, student-athletes, coaches, administrators, etc... on social media and/or any issues pertaining to college athletics.

To ensure that NCAA schools do not fall victim to these self-anointed experts who do not have the best interests of schools, athletic departments, and student-athletes in mind, below is a list of characteristics to help determine if a self described NCAA social media consultant, expert, guru, trainer, leader, etc... is a fraud:

1) The consultant advises schools to buy his social media monitoring software to track and/or archive student-athletes' password and/or non-password protected online activity.

2) The consultant advises schools to request or require students to register their social media user names and/or passwords with athletic departments and/or third parties.

3) The consultant advises schools to request or require that student-athletes Facebook Friend schools and/or third parties.

4) The consultant has no verifiable professional social media and/or sports experience before starting his sports social media consulting company.

5) The consultant incorrectly predicted how the NCAA's social media monitoring allegation against the University of North Carolina would be resolved.

6) The consultant follows more people on his professional Twitter account than are following him back.

7) The consultant's social media credentials appear too good to be true which may indicate social media credential fraud.

8) The consultant claims that schools that utilize his social media monitoring program will not be violating any current/future laws or creating the potential for tremendous legal liability.

9) The consultant has no verifiable professional social media experience prior to 2011.

10) The consultant has public Twitter conversations that may be better suited via direct message and/or another more discreet format.

If a social media consultant approaches an NCAA institution and has more than one of these characteristics it most likely indicates that the consultant is not the expert, leader, guru, etc... that he claims to be but a fraud whose advice may put the safety of a university and/or its students at risk and may create tremendous legal liability for universities, coaches, athletic department administrators, and/or student-athletes.

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.