E.P.A.'s Secret Social Media Campaign Violated The Law

According to The New York Times, the Environmental Protection Agency (E.P.A.) engaged in an illegal covert social media campaign to back an Obama administration rule that was intended to to increase protections for our country's streams and waters according to the Government Accountability Office (G.A.O.).

The E.P.A. disputed the G.A.O.'s findings and an official with the agency stated, "[w]e use social media tools just like all organizations to stay connected and inform people across the country about our activities...[a]t no point did the E.P.A encourage the public to contact Congress or any state legislature."

Under the law, federal agencies may not participate in lobbying. The G.A.O. stated that the E.P.A. violated the federal Anti-deficiency Act which prohibits federal agencies from spending money without authorization.  Violating this act may lead to fines and/or jail time.  While its highly unlikely that anyone will be fined or sent to jail for these activities this should serve as a wake up call to government agencies because utilizing social media for illegal activities may create tremendous legal issues that can lead to fines and/or imprisonment.   

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Social Media Monitoring NCAA Student-Athletes May Create Legal Liability in Excess of $100 Million Dollars

In the past 6 months, California, Michigan, Delaware, and New Jersey have enacted laws banning school athletic departments from requesting or requiring their student-athletes verify their social media/digital media usernames/passwords and/or install cyberstalking software onto their personal accounts or devices.  Many other states along with Congress have introduced legislation to ban these practices to protect schools from legal liability and to protect the personal privacy of students.   

Unfortunately, some companies/"social media experts" are approaching NCAA schools and intentionally misleading athletic departments about their experience, their understanding of NCAA compliance, and their knowledge of state and federal law.  Some of these companies may claim that their "social media monitoring" services "respect privacy", or "promote compliance", or they "never ask for passwords" or that their services"facilitate education".  These claims are misleading and may create tremendous legal liability for NCAA athletic programs that engage any of these companies.

The legal liability of engaging a social media monitoring company to digitally track a program's student-athletes or employees may be tens of millions of dollars. Anyone who disagrees with this analysis needs to review the facts about the Penn State Jerry Sandusky scandal.  Emails from 10 plus years ago destroyed the careers of several well respected members of the Penn State administration/faculty and may cost the school more than $100 million dollars in fines/legal fees/judgements/settlements, etc.. 

Digital evidence (emails) was key in the Freeh Report which the NCAA appears to have relied on to levy a $60 million dollar fine against Penn State.  The total cost of this terrible scandal to Penn State may reach $150-$200 million dollars.  Absent the digital evidence, the Freeh Report may have reached a different conclusion, the NCAA may not have had the evidence to support a fine and other sanctions, and plaintiffs may have a hard time proving Penn State knew about Mr. Sandusky's behavior.  

Do schools and athletic department employees want to monitor and archive potential evidence that may be discoverable and utilized against them in lawsuits?  The bottom line is that NCAA athletic departments should not engage services that may harm their interests and put them in a position that may create tens or hundreds of millions of dollars in legal liability.  

To learn more about these issues you may contact me at http://shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved. 

2011 Social Media Law Predictions Update Part II

On January 10, 2011, I made ten predictions for 2011 regarding social media and the law. Now it is time to evaluate my ability to read the tea leaves in social media and the law. On December 28, 2011, I analyzed the first five of my ten predictions. Four out of my first five predictions have been realized and the one prediction that has not yet come to fruition may be realized within the next couple of months. Below were my second five predictions for 2011.

6. Regulated industries such as banking and finance, pharma, etc...will continue refining their approach to regulating social media usage. During the year, FINRA, the Financial Industry Regulation Authority provided more guidance on how brokers may utilize social media in their professional environment.

7. Federal and state governments will determine what official government social media records need to be retained. During the year, federal agencies created best practices for social media record retention.

8. Homeland Security, the CIA, FBI, NSA, U.S. Armed Forces, etc... will need re-evaluate their social media policies and determine what they allow their employees to post online. During the year, Homeland Security stated that it was reviewing its social media policies.

9. Cyberbulling, Privacy, Defamation, and First Amendment issues will become further intertwined and a rational legal framework will need to be created to address these matters. During the year, Connecticut passed a new cyberullying law and New York also discussed updating its bullying laws to account for the Social Media Age.

10. Social Media Credential Fraud will continue to increase as more people will try to create the perception that they are experts in their professional field due to their social media activity. Fraud in the social media space is a huge problem and during the year the National Advertising Division of the Better Business Bureau came out strongly against Like-Gating which may be another name for Social Media Credential Fraud.

For 2011, 9 of my 10 ten predictions came true and the other prediction will eventually come true because the issue is too important not to be resolved within the next year or two.

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.

2011 Social Media Law Predictions Update Part I

On January 10, 2011, I made ten predictions for 2011 regarding social media and the law. Now it is time to evaluate my ability to read the tea leaves in social media and the law.

1) Employers will continue to grapple with where to draw the line regarding employee social media use. This prediction has come true. For example, the NLRB has dealt with multiple cases this year concerning social media usage by employees and is trying to balance an employee's First Amendment right versus an employer's ability to discipline.

2) More courts will address social media usage in their instructions to juries and there will be more e-discovery related social media matters. This prediction has come true. For example, California recently banned jurors from using social media to discuss their active cases.

3) The judicial system, bar associations, and bar counsels will work to find a common sense approach regarding how lawyers, judges, and clients may or may not interact with each other on social media. This predication has come true. For example, the San Diego County Bar Association wrote an opinion regarding social media and ethics.

4) Intellectual property law will be updated to better protect copyright owners. This prediction is in the process of coming true. As I am writing this post Congress is debating the Stop Online Piracy Act and several other similar pieces of legislation.

5) The Federal Election Commission and state election boards will update their rules to address social media usage by political candidates. This prediction has come true around the world. For example, Canadians now face strict social media rules prohibiting premature transmission of election results.

Four of my first five predictions have come true and it appears that after the Congressional recess my prediction that copyright owners will soon have more intellectual property protection may also be realized. I will be reviewing my second five predictions soon-so stay tuned.

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.

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.