In 2002, a U.S. court approved service of process via email. In 2008, an Australian court first allowed for service of process via Facebook and then earlier this week a UK High Court Judge approved service of process via Facebook. Therefore, service of process via electronic means is gaining acceptance around the world and it may only be a matter of time before a U.S. court will allow for service of process via social media.
Before a U.S. court allows service of process via social media it should understand the authentication issues involved. During my discussion with ABC News about this issue I stated, "[a]uthentication is a major issue since you must be sure that the person with whom you are trying to serve online is the same person offline. You don’t want to have someone’s due process rights infringed upon due to not being properly notified.”
Maryland's highest court came out with a seminal decision almost a year ago discussing authentication of social media evidence. The court understood that just because a social media profile appears to be genuine does not make it so. A person must do their due diligence to ensure that a social media account is the real McCoy.
Therefore, before a U.S. judge allows for service via social media the court must ensure that the person being served online is the same person offline. Authentication must not become an afterthought.
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.
Saturday, February 25, 2012
Tuesday, February 21, 2012
Dharun Rhavi Case Proves Some Universities Must Rethink Their Social Media Policies
Some colleges and universities may have social media policies that violate the U.S. Constitution. As I stated on September 26, 2011, the University of North Carolina's social media policy for its student-athletes is very troubling and every single day that UNC has this policy in place the university is increasing its legal liability.
Schools that require their students to turn over their social media user names, and/or account names, and/or passwords, and/or require students to Facebook Friend university employees and/or download monitoring software onto their personal electronic devices to monitor all of their students' online activity are creating a legal minefield they do not understand.
This week the tragic case of Rutgers' student Tyler Clementi is back in the news. For those not familiar with the matter, I first wrote about it on October 6, 2010 and then again on May 1, 2011. Prosecutors allege that Dharun Rhavi's online activity contributed to Tyler Clementi's suicide. In addition, the prosecution has charged Rhavi with tampering with online evidence.
If Rutgers was monitoring the social media activity of Clementi and/or Rhavi and did not act to stop the online activity that is alleged to have contributed to Clementi's death Rutgers may be sued for negligent social media monitoring. However, if Rutgers was only monitoring the social media activity of some of its students but not all of its students Rutgers may be sued for discrimination. Multiple lawyers and risk professionals have already discussed the tremendous liability schools may encounter social media monitoring their students. Therefore, schools must tread very carefully when creating a social media policy.
To learn more about this issue you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserve
Schools that require their students to turn over their social media user names, and/or account names, and/or passwords, and/or require students to Facebook Friend university employees and/or download monitoring software onto their personal electronic devices to monitor all of their students' online activity are creating a legal minefield they do not understand.
This week the tragic case of Rutgers' student Tyler Clementi is back in the news. For those not familiar with the matter, I first wrote about it on October 6, 2010 and then again on May 1, 2011. Prosecutors allege that Dharun Rhavi's online activity contributed to Tyler Clementi's suicide. In addition, the prosecution has charged Rhavi with tampering with online evidence.
If Rutgers was monitoring the social media activity of Clementi and/or Rhavi and did not act to stop the online activity that is alleged to have contributed to Clementi's death Rutgers may be sued for negligent social media monitoring. However, if Rutgers was only monitoring the social media activity of some of its students but not all of its students Rutgers may be sued for discrimination. Multiple lawyers and risk professionals have already discussed the tremendous liability schools may encounter social media monitoring their students. Therefore, schools must tread very carefully when creating a social media policy.
To learn more about this issue you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserve
Friday, February 3, 2012
Maryland Bills Would Protect Students' Social Media Privacy Rights, Schools, and Taxpayers
The State of Maryland is leading the way nationally to protect the social media privacy rights of students with Senate Bill 434: Institutions of Postsecondary Education-Electronic Account, Service, and Communications Device Privacy Protection and House Bill 310 Public and Non-Public Institutions of Higher Education - Internet and Electronic Privacy Protection.
According to the synopsis of Senate Bill 434 on the Maryland Legislature's website:
Prohibiting an institution of postsecondary education from requiring a student or an applicant for admission to provide access to a personal account or service through an electronic communications device, to disclose any user name, password, or other means for accessing specified accounts or services through an electronic communications device, or to install on specified electronic communications devices software that monitors or tracks electronic content; etc.
According to the synopsis of House Bill 310 on the Maryland Legislature's website:
Prohibiting public and nonpublic institutions of higher education from requiring a student or applicant for admission to provide the academic institution with access to specified Internet sites or electronic accounts through specified electronic devices, to disclose specified password and related information, or to install specified monitoring or tracking software onto specified electronic devices; etc.
These bills still allow students and coaches, school employees, etc... to interact with each other online. This is in contrast to the initial bill that Missouri passed and then revised last year. Since students have the right to engage or not engage with their coaches, school employees, etc... offline they should also have this same right online.
SB 434 and HB 310 would benefit students, applicants, schools, and taxpayers. They would protect a student's and college applicant's privacy rights. The Supreme recently signaled in U.S. v. Jones, that students still have an expectation of privacy in the Social Media Age and that students still have free speech rights while utilizing social media.
Both bills would ensure that colleges and universities do not create a legal duty to monitor all of their students' digital content. Once a school creates a legal duty to monitor all electronic content they may be subject to numerous costly lawsuits. For example, if the University of Virginia was monitoring the electronic content of its former lacrosse players George Huguely and/or Yardley Love and knew or should have known that Huguely may hurt Love then UVA may have had significant legal liability for negligent social media monitoring because it failed to protect Love. If UVA was only monitoring the electronic content of its football and/or basketball players but not its lacrosse players then it may be considered discrimination and UVA may have been sued for not monitoring the electronic content of all of its students.
Taxpayers support the educational system and therefore would benefit from the passage of this legislation because tax dollars should be utilized to educate our children and not be wasted on creating easily avoidable legal liability. In addition, when a school is sued for negligence tax payers may end up footing the bill.
With access comes responsibility. I do not believe that schools that require their students to provide them access to their personal electronic accounts understand the constitutional and legal liability issues involved. If Penn State's legal counsel would have been made aware of the Jerry Sandusky matter at a much earlier stage and was able to inform the athletic department and the administration about the serious legal and financial liability issues involved, Penn State may not be facing their current legal mess and multiple young boys may have been saved from being molested.
As I have stated over and over and over again, educational institutions and society need to fully understand the legal and public policy implications of social media before creating policies that may not only be unconstitutional but also may create tremendous unforeseen legal liability. Too many colleges and universities are already creating a legal quagmire with their social media policies. Now is the time to rectify the situation before schools are left with tremendous legal bills defending unconstitutional policies and tort judgments for negligence.
Unlike China, the United States does not have a Microblog Identification Program that requires its online users to register with the government so it may track its citizens' online speech. Schools that require their students to turn over their social media user names and/or content are acting as though they are based in China and not in the United States. It is time for these schools that are violating the Constitution to stop because our country has a long history of protecting and encouraging free speech from the Federalist Papers to Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969) to their decisions a few weeks ago to uphold student free speech in the MySpace cases and clearly declare in U.S. v. Jones we still have an expectation of privacy in the Social Media Age.
I encourage everyone who reads this to reach out to Maryland's legislators to voice support for these bills and to lobby your state legislatures to pass similar legislation. These bills are a win for students, schools, and taxpayers.
(Full Disclosure: I am not being paid for my work on this legislation. I believe that the 1st and 4th Amendments still matter in the Social Media Age and I want to protect students, schools, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I contacted Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to notify them about these issues and worked with them to create a common sense solution to this problem that protects the interests of students, schools, and taxpayers.)
To learn more about this issue you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
According to the synopsis of Senate Bill 434 on the Maryland Legislature's website:
Prohibiting an institution of postsecondary education from requiring a student or an applicant for admission to provide access to a personal account or service through an electronic communications device, to disclose any user name, password, or other means for accessing specified accounts or services through an electronic communications device, or to install on specified electronic communications devices software that monitors or tracks electronic content; etc.
According to the synopsis of House Bill 310 on the Maryland Legislature's website:
Prohibiting public and nonpublic institutions of higher education from requiring a student or applicant for admission to provide the academic institution with access to specified Internet sites or electronic accounts through specified electronic devices, to disclose specified password and related information, or to install specified monitoring or tracking software onto specified electronic devices; etc.
These bills still allow students and coaches, school employees, etc... to interact with each other online. This is in contrast to the initial bill that Missouri passed and then revised last year. Since students have the right to engage or not engage with their coaches, school employees, etc... offline they should also have this same right online.
SB 434 and HB 310 would benefit students, applicants, schools, and taxpayers. They would protect a student's and college applicant's privacy rights. The Supreme recently signaled in U.S. v. Jones, that students still have an expectation of privacy in the Social Media Age and that students still have free speech rights while utilizing social media.
Both bills would ensure that colleges and universities do not create a legal duty to monitor all of their students' digital content. Once a school creates a legal duty to monitor all electronic content they may be subject to numerous costly lawsuits. For example, if the University of Virginia was monitoring the electronic content of its former lacrosse players George Huguely and/or Yardley Love and knew or should have known that Huguely may hurt Love then UVA may have had significant legal liability for negligent social media monitoring because it failed to protect Love. If UVA was only monitoring the electronic content of its football and/or basketball players but not its lacrosse players then it may be considered discrimination and UVA may have been sued for not monitoring the electronic content of all of its students.
Taxpayers support the educational system and therefore would benefit from the passage of this legislation because tax dollars should be utilized to educate our children and not be wasted on creating easily avoidable legal liability. In addition, when a school is sued for negligence tax payers may end up footing the bill.
With access comes responsibility. I do not believe that schools that require their students to provide them access to their personal electronic accounts understand the constitutional and legal liability issues involved. If Penn State's legal counsel would have been made aware of the Jerry Sandusky matter at a much earlier stage and was able to inform the athletic department and the administration about the serious legal and financial liability issues involved, Penn State may not be facing their current legal mess and multiple young boys may have been saved from being molested.
As I have stated over and over and over again, educational institutions and society need to fully understand the legal and public policy implications of social media before creating policies that may not only be unconstitutional but also may create tremendous unforeseen legal liability. Too many colleges and universities are already creating a legal quagmire with their social media policies. Now is the time to rectify the situation before schools are left with tremendous legal bills defending unconstitutional policies and tort judgments for negligence.
Unlike China, the United States does not have a Microblog Identification Program that requires its online users to register with the government so it may track its citizens' online speech. Schools that require their students to turn over their social media user names and/or content are acting as though they are based in China and not in the United States. It is time for these schools that are violating the Constitution to stop because our country has a long history of protecting and encouraging free speech from the Federalist Papers to Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969) to their decisions a few weeks ago to uphold student free speech in the MySpace cases and clearly declare in U.S. v. Jones we still have an expectation of privacy in the Social Media Age.
I encourage everyone who reads this to reach out to Maryland's legislators to voice support for these bills and to lobby your state legislatures to pass similar legislation. These bills are a win for students, schools, and taxpayers.
(Full Disclosure: I am not being paid for my work on this legislation. I believe that the 1st and 4th Amendments still matter in the Social Media Age and I want to protect students, schools, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I contacted Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to notify them about these issues and worked with them to create a common sense solution to this problem that protects the interests of students, schools, and taxpayers.)
To learn more about this issue you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, January 28, 2012
Is FC Bayern Munchen Guilty of Like-Gating?
FC Bayern Munchen recently created a public relations own goal with its social media usage that may have legal consequences. A couple of days ago, Bayern Munchen announced on its website they had agreed to sign a 'spectacular name' and then directed fans to listen to the announcement live on the club's Facebook page. However, in order to listen to the announcement the Facebook user had to first "Like" the page.
There was no announcement of the signing of a "spectacular name". Instead, Bayern Munchen's GM Christian Nerlinger appeared in a video that contained the fans' own Facebook profile photo along with their name on a Bayern Munchen shirt. Many fans were not amused and complained loudly across multiple social media platforms.
The bottom line is that sports organizations must be very careful when implementing social media marketing campaigns. There are major legal implications with every single social media marketing promotion.
To learn more about these issues you may contact me at http://shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
There was no announcement of the signing of a "spectacular name". Instead, Bayern Munchen's GM Christian Nerlinger appeared in a video that contained the fans' own Facebook profile photo along with their name on a Bayern Munchen shirt. Many fans were not amused and complained loudly across multiple social media platforms.
The bottom line is that sports organizations must be very careful when implementing social media marketing campaigns. There are major legal implications with every single social media marketing promotion.
To learn more about these issues you may contact me at http://shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, January 23, 2012
Supreme Court Signals It Will Protect Students' Social Media Privacy Rights
The Supreme Court ruled today that the Fourth Amendment still matters in the Social Media Age. In U.S. v. Jones, the court voted 9-0 that a warrant was required to place a GPS tracker onto a car.
This case has wide ranging ramifications in the Social Media Age. If the installation of a GPS tracking device onto a car constitutes a search then the required installation of social media monitoring software onto a student's personal electronic device by a state school also constitutes a search. In addition, the requirement by public schools that their students provide them access to all of their personal electronic content is also a search.
As I have stated over and over again, schools must be very careful when trying to regulate or access a student's personal electronic content. Requiring students to Facebook Friend school administrators, and/or download social media monitoring software onto personal electronic devices and/or requiring students to turn over their social media user names and passwords may create major legal liabilities for academic institutions. Last week, the Supreme Court let stand a couple cases that protected student social media free speech and now this week the court unanimously ruled that there still is an expectation of privacy in the Social Media Age.
As I previously stated on January 18, 2012,
"Unlike China that has a Microblog Identification Program that requires its citizens to register their online user names so the government may track their online posts, the United States strongly believes in freedom of speech. Therefore, schools must be careful when trying to regulate student social media speech.
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.
This case has wide ranging ramifications in the Social Media Age. If the installation of a GPS tracking device onto a car constitutes a search then the required installation of social media monitoring software onto a student's personal electronic device by a state school also constitutes a search. In addition, the requirement by public schools that their students provide them access to all of their personal electronic content is also a search.
As I have stated over and over again, schools must be very careful when trying to regulate or access a student's personal electronic content. Requiring students to Facebook Friend school administrators, and/or download social media monitoring software onto personal electronic devices and/or requiring students to turn over their social media user names and passwords may create major legal liabilities for academic institutions. Last week, the Supreme Court let stand a couple cases that protected student social media free speech and now this week the court unanimously ruled that there still is an expectation of privacy in the Social Media Age.
As I previously stated on January 18, 2012,
"Unlike China that has a Microblog Identification Program that requires its citizens to register their online user names so the government may track their online posts, the United States strongly believes in freedom of speech. Therefore, schools must be careful when trying to regulate student social media speech.
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.
Wednesday, January 18, 2012
Supreme Court Signals It Will Protect Students' Social Media First Amendment Rights
The Supreme Court recently declined to review three social media free speech cases. According to the Associated Press, the Supreme Court let stand two cases that stated that public schools do not have the right to discipline students for off campus speech that was disseminated via social media. In the third case, the Supreme Court let stand a student's suspension by a West Virginia school that was handed out because the student created a web page that suggested another student had a sexually transmitted disease.
On-campus and off-campus speech has been blurred because of the reach of social media. However, the Supreme Court demonstrated that at this point Tinker v. Des Moines (393 U.S. 503, 1969) is still the law of the land. According to Tinker, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Furthermore, the Tinker Court stated, "[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."
In my Social Media Law Predictions For 2012, I mentioned as my third prediction: "State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports."
As I have previously stated, I believe it is unconstitutional for a public school to require their students to turn over their private social media user names and passwords and/or provide access to their private social media content via "Facebook Friending" a school employee and/or to require that students install social media monitoring software onto their personal electronic devices. Public schools that require their students to provide them access to their private social media content are violating the U.S. Constitution and are creating tremendous legal liability issues that may ultimately harm taxpayers who provide school funding.
Unfortunately, some public schools are listening to social media consultants who are advising them that it is legal and acceptable public policy to require students to provide schools unfettered access to their personal electronic devices and content in order to play intercollegiate sports. It appears that consultants who are advising some public schools on these issues do not understand NCAA social media compliance issues, the law, legal liability issues, public policy, etc...
Unlike China that has a Microblog Identification Program that requires its citizens to register their online user names so the government may track their online posts, the United States strongly believes in freedom of speech. Therefore, schools must be careful when trying to regulate student social media speech.
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.
On-campus and off-campus speech has been blurred because of the reach of social media. However, the Supreme Court demonstrated that at this point Tinker v. Des Moines (393 U.S. 503, 1969) is still the law of the land. According to Tinker, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Furthermore, the Tinker Court stated, "[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."
In my Social Media Law Predictions For 2012, I mentioned as my third prediction: "State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports."
As I have previously stated, I believe it is unconstitutional for a public school to require their students to turn over their private social media user names and passwords and/or provide access to their private social media content via "Facebook Friending" a school employee and/or to require that students install social media monitoring software onto their personal electronic devices. Public schools that require their students to provide them access to their private social media content are violating the U.S. Constitution and are creating tremendous legal liability issues that may ultimately harm taxpayers who provide school funding.
Unfortunately, some public schools are listening to social media consultants who are advising them that it is legal and acceptable public policy to require students to provide schools unfettered access to their personal electronic devices and content in order to play intercollegiate sports. It appears that consultants who are advising some public schools on these issues do not understand NCAA social media compliance issues, the law, legal liability issues, public policy, etc...
Unlike China that has a Microblog Identification Program that requires its citizens to register their online user names so the government may track their online posts, the United States strongly believes in freedom of speech. Therefore, schools must be careful when trying to regulate student social media speech.
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.
Friday, January 13, 2012
Twitter Account Ownership Follow Up
On December 26, 2011, I discussed the Twitter account ownership lawsuit between PhoneDog and Noah Kravitz. On December 28, 2011, I appeared on Canada's CTV News to discuss the case. Since not all the facts are yet known it is too soon to speculate who owns the account. However, as I previously stated on December 26, 2011, PhoneDog's claim that each Twitter Follower is worth $2.50 appears to be clearly erroneous.
If PhoneDog hires an expert that claims under oath that each Twitter Follower is worth $2.50, I believe it would be easy to dispute this assertion. While some of the lawsuit's exact issues appear novel in a court of law, a case regarding the ownership of a LinkedIn account is currently being litigated. Below is my recent appearance on CTV News where I discuss the PhoneDog matter.
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.
If PhoneDog hires an expert that claims under oath that each Twitter Follower is worth $2.50, I believe it would be easy to dispute this assertion. While some of the lawsuit's exact issues appear novel in a court of law, a case regarding the ownership of a LinkedIn account is currently being litigated. Below is my recent appearance on CTV News where I discuss the PhoneDog matter.
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.
Tuesday, January 10, 2012
Disconnecting From Social Media in 2012
Disconnecting from social media may help one realize that there is more to life than Facebook posting, Tweeting, Google plussing, etc... On Wednesday January 4, 2012, I discussed some of these issues with Washington, DC's Fox 5 News morning Co-Anchor Tony Perkins.
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.
Disconnecting from Technology in 2012: MyFoxDC.com
Life is more fun in the real world than in the virtual world.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.
Sunday, January 8, 2012
Social Media Law Predictions For 2012
Having foresight and advising clients on how to successfully navigate potential legal risks is what lawyers are paid to do. On January 10, 2011, I made 10 social media law predictions for the year and nine of them have come true; the tenth one appears that it will be realized within the next couple of months. In no particular order, below are some of my social media law predictions for 2012:
1) Social Media account ownership issues will increase.
2) State Legislatures and/or the courts in the United States will address whether employees may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices so employers may access their employees' private electronic content.
3) State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports.
4) In the United States lawmakers will work to pass bipartisan intellectual property legislation to address social media copyright and trademark issues.
5) Rakofsky v. the Internet will be decided in favor of the Internet.
6) The United States' Federal Trade Commission and the United Kingdom's Advertising Standards Authority will crack down on fraud and misleading social media advertising.
7) Governments around the world will continue to grapple with how to control social media flash mobs, anti-government content, Internet controls, etc...
8) Governing bodies and courts around the world will continue to address social media privacy issues.
9) Social Media usage by political candidates and political causes will greatly increase during the 2012 election cycle and this will lead to increased discussion on updating election compliance laws in the United States and around the world.
10) Lawyers will realize that some of their social media marketing consultants are violating the FTC advertising regulations.
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.
1) Social Media account ownership issues will increase.
2) State Legislatures and/or the courts in the United States will address whether employees may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices so employers may access their employees' private electronic content.
3) State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports.
4) In the United States lawmakers will work to pass bipartisan intellectual property legislation to address social media copyright and trademark issues.
5) Rakofsky v. the Internet will be decided in favor of the Internet.
6) The United States' Federal Trade Commission and the United Kingdom's Advertising Standards Authority will crack down on fraud and misleading social media advertising.
7) Governments around the world will continue to grapple with how to control social media flash mobs, anti-government content, Internet controls, etc...
8) Governing bodies and courts around the world will continue to address social media privacy issues.
9) Social Media usage by political candidates and political causes will greatly increase during the 2012 election cycle and this will lead to increased discussion on updating election compliance laws in the United States and around the world.
10) Lawyers will realize that some of their social media marketing consultants are violating the FTC advertising regulations.
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.
Sunday, January 1, 2012
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.
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.
Thursday, December 29, 2011
The New York Times May Be the Most Trusted News Source in the Social Media Age
The New York Times has been around since 1851 and is regarded as the newspaper of record for the United States. Its reputation is second to none. In the Social Media Age the Gray Lady is still a premier destination for news.
This past week has proven that real world reputation still trumps Facebook Likes, LinkedIn shares, Tweets, etc... If The New York Times reports on something it matters and the world takes notice. For example, on December 25, 2011, the paper reported on a lawsuit that may provide some guidance regarding who owns a Twitter account and what is the value of Twitter follower. Within 24 hours after the article was published the story went viral and news organizations around the world reported on this matter. I appeared on Canada's CTV News Channel last night to discuss the case.
While some may argue that because of Twitter, LinkedIn, Facebook, etc... the story went viral, I disagree. The story went viral because the New York Times reported on it. The proof may be that it was reported online by a major business publication on November 14, 2011 and again on November 17, 2011. The articles were viewed cumulatively approximately 10,000 times online and shared approximately 1000 times via social media. Despite widespread viewing and social media sharing, this story did not go viral until it was covered by the The New York Times.
Reputation is not something that Klout, PeerIndex, etc....are able to accurately measure. Those who believe these companies can measure reputation remind me of the Emperor in the Hans Christian Anderson tale: The Emperor's New Clothes. The bottom line is that reputation is everything and not easily quantifiable.
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.
This past week has proven that real world reputation still trumps Facebook Likes, LinkedIn shares, Tweets, etc... If The New York Times reports on something it matters and the world takes notice. For example, on December 25, 2011, the paper reported on a lawsuit that may provide some guidance regarding who owns a Twitter account and what is the value of Twitter follower. Within 24 hours after the article was published the story went viral and news organizations around the world reported on this matter. I appeared on Canada's CTV News Channel last night to discuss the case.
While some may argue that because of Twitter, LinkedIn, Facebook, etc... the story went viral, I disagree. The story went viral because the New York Times reported on it. The proof may be that it was reported online by a major business publication on November 14, 2011 and again on November 17, 2011. The articles were viewed cumulatively approximately 10,000 times online and shared approximately 1000 times via social media. Despite widespread viewing and social media sharing, this story did not go viral until it was covered by the The New York Times.
Reputation is not something that Klout, PeerIndex, etc....are able to accurately measure. Those who believe these companies can measure reputation remind me of the Emperor in the Hans Christian Anderson tale: The Emperor's New Clothes. The bottom line is that reputation is everything and not easily quantifiable.
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.
Wednesday, December 28, 2011
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.
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.
Monday, December 26, 2011
Twitter Account Ownership and The Value Of A Twitter Follower
The New York Times recently covered a lawsuit regarding the ownership of a Twitter account and the value of a Twitter follower. These issues may not be novel in the social media space; however, they may be novel issues in a court of law.
The lawsuit is between PhoneDog and Noah Kravitz. Some of the facts appear to be in dispute. However, it appears that Noah Kravitz was tweeting on behalf of PhoneDog, amassed a significant number of Twitter followers, and is no longer associated with PhoneDog. Now PhoneDog wants to be compensated for lost Twitter followers.
I don't want to speculate on the actual ownership of the Twitter account because not all of the facts have been publicly aired. However, PhoneDog is claiming that each Twitter follower is worth $2.50 and according to Forbes PhoneDog is also claiming that Kravitz's twitter account is worth $42,500 per month.
PhoneDog's Twitter follower valuation claim and damage assessment is clearly erroneous and not supported by any facts. As George Orwell might say, some Twitter followers are more equal than others. For example, in August one of my posts was retweeted by someone who has a large number of Twitter followers and within an hour I received more than 100 retweets. Receiving retweets may increase interest in my blog; however, I didn't obtain any new clients who stated on their client intake form that I saw a tweet about my blog post, read my blog post because of the tweet, and then hired my law firm based on a tweet and/or my blog post.
Furthermore, Social Media Credential Fraud may distort the valuation of a Twitter follower. There are some self described social media strategists who are intentionally following tens of thousands, hundreds of thousands, or maybe millions of Twitter accounts in the hopes of getting a follow back and then misleading their clients into believing they have a large number of followers without the need to follow a large number of people in return.
The bottom line is that until the FTC cracks down on fraud in social media it may not be feasible to accurately value a Twitter follower.
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 lawsuit is between PhoneDog and Noah Kravitz. Some of the facts appear to be in dispute. However, it appears that Noah Kravitz was tweeting on behalf of PhoneDog, amassed a significant number of Twitter followers, and is no longer associated with PhoneDog. Now PhoneDog wants to be compensated for lost Twitter followers.
I don't want to speculate on the actual ownership of the Twitter account because not all of the facts have been publicly aired. However, PhoneDog is claiming that each Twitter follower is worth $2.50 and according to Forbes PhoneDog is also claiming that Kravitz's twitter account is worth $42,500 per month.
PhoneDog's Twitter follower valuation claim and damage assessment is clearly erroneous and not supported by any facts. As George Orwell might say, some Twitter followers are more equal than others. For example, in August one of my posts was retweeted by someone who has a large number of Twitter followers and within an hour I received more than 100 retweets. Receiving retweets may increase interest in my blog; however, I didn't obtain any new clients who stated on their client intake form that I saw a tweet about my blog post, read my blog post because of the tweet, and then hired my law firm based on a tweet and/or my blog post.
Furthermore, Social Media Credential Fraud may distort the valuation of a Twitter follower. There are some self described social media strategists who are intentionally following tens of thousands, hundreds of thousands, or maybe millions of Twitter accounts in the hopes of getting a follow back and then misleading their clients into believing they have a large number of followers without the need to follow a large number of people in return.
The bottom line is that until the FTC cracks down on fraud in social media it may not be feasible to accurately value a Twitter follower.
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.
Saturday, December 24, 2011
Will the Russian Winter Turn Into An Arab Spring?
Will the Russian Winter turn into an Arab Spring? In 1991, the world watched as the Soviet Union disappeared after a failed coup to overthrow President Mikhail Gorbachev. During the past month, the world has been wondering if Russia is in the middle of another government upheaval that may change the course of history. It is too soon to determine whether Vladimir Putin and Dimitry Medvedev will continue to hold their country's top two leadership positions; however, I predict that they will not lead as long as they had anticipated.
On February 11, 2011, I discussed some of the underlying reasons why Egypt's President Mubarak was forced from power. I stated: "[i]t 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."
Russia has some of the same problems that plagued Egypt. Former President Putin and current President Medvedev are seen as dictators, there is rampant police brutality and political corruption, recent constitutional changes that have benefited Putin and Medvedev, and major economic challenges. These issues plus social media missteps by Medvedev and Putin have fueled anger that may foment change. According to published reports, Medvedev/Putin may have also utilized the Russian secret police to try to block protestors from using social media. This is the same tactic that Egypt's Mubarak tried and it failed miserably.
The international community first noticed that the Russian people may have finally grown weary of Putin's stranglehold over the Russian government in late November during a mixed martial arts fight between Russia's Fedor Emelianenko and America's Jeff "The Snowman" Monson. After the fight Putin stepped into the ring to congratulate the winner and the crowd booed Putin. According to the BBC, the scene was uploaded to YouTube and subsequently viewed more than 2.5 million times.
In Russia, booing Putin during a public event was seen as a major signal that there may be underlying problems with his iron grip on the country. Subsequently, during the recent election there were numerous allegations that Putin's party may have participated in electoral fraud. Widespread anger and protests against Putin are increasing daily and instead of properly addressing the concerns of the Russian people Putin is generally ignoring them and acting as a Czar. Therefore, I would not be surprised if the Russian Winter turns into an Arab Spring.
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.
On February 11, 2011, I discussed some of the underlying reasons why Egypt's President Mubarak was forced from power. I stated: "[i]t 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."
Russia has some of the same problems that plagued Egypt. Former President Putin and current President Medvedev are seen as dictators, there is rampant police brutality and political corruption, recent constitutional changes that have benefited Putin and Medvedev, and major economic challenges. These issues plus social media missteps by Medvedev and Putin have fueled anger that may foment change. According to published reports, Medvedev/Putin may have also utilized the Russian secret police to try to block protestors from using social media. This is the same tactic that Egypt's Mubarak tried and it failed miserably.
The international community first noticed that the Russian people may have finally grown weary of Putin's stranglehold over the Russian government in late November during a mixed martial arts fight between Russia's Fedor Emelianenko and America's Jeff "The Snowman" Monson. After the fight Putin stepped into the ring to congratulate the winner and the crowd booed Putin. According to the BBC, the scene was uploaded to YouTube and subsequently viewed more than 2.5 million times.
In Russia, booing Putin during a public event was seen as a major signal that there may be underlying problems with his iron grip on the country. Subsequently, during the recent election there were numerous allegations that Putin's party may have participated in electoral fraud. Widespread anger and protests against Putin are increasing daily and instead of properly addressing the concerns of the Russian people Putin is generally ignoring them and acting as a Czar. Therefore, I would not be surprised if the Russian Winter turns into an Arab Spring.
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.
Social Media May Decrease Law Firm Revenues
There still appears to be a major disconnect between lawyers and social media. The Wall Street Journal Law Blog recently asked the question: "2012:The Year Law Firms Ditch Geezer Image and Get Tweeting?" Most of the Wall Street Journal's sources for the post were marketers and not practicing lawyers who actively tweet so I would like to see the Wall Street Journal create a follow up post that asks practicing lawyers if Twitter is an effective marketing tool for lawyers.
I believe that the overwhelming majority of practicing lawyers who actively tweet may state that social media usage does not increase law firm revenues. I have been tweeting from @bradleyshear since June 15, 2009, have tweeted more than 3,200 times, and I have a Twitter grade from Twitter Grader of 94/100. Despite these social media statistics, I have never had a client mention on his intake form that he hired me because of my tweets.
Over the past several months, I have had several people approach me during networking events and conferences to tell me that my blog has helped reduce their need for legal services. When this has occurred I have asked how and the general response has been that for some issues my blog provides enough information that they don't feel they need to spend more money on legal fees. One potential client reiterated the old saying "Why buy the cow when you can get the milk for free."
Instead of increasing law firm revenues social media usage by lawyers may decrease law firm revenues. The World War II saying, "Loose lips sink ships" may come into play when lawyers tweet and/or blog. Therefore, before you spend your firm's marketing dollars on a social media evangelist who wants to teach your firm how to tweet you may want to peel back the social media onion because you may be surprised with what you may find.
To learn more about these issues you may contact me at http://www.shearlaw.com/.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
I believe that the overwhelming majority of practicing lawyers who actively tweet may state that social media usage does not increase law firm revenues. I have been tweeting from @bradleyshear since June 15, 2009, have tweeted more than 3,200 times, and I have a Twitter grade from Twitter Grader of 94/100. Despite these social media statistics, I have never had a client mention on his intake form that he hired me because of my tweets.
Over the past several months, I have had several people approach me during networking events and conferences to tell me that my blog has helped reduce their need for legal services. When this has occurred I have asked how and the general response has been that for some issues my blog provides enough information that they don't feel they need to spend more money on legal fees. One potential client reiterated the old saying "Why buy the cow when you can get the milk for free."
Instead of increasing law firm revenues social media usage by lawyers may decrease law firm revenues. The World War II saying, "Loose lips sink ships" may come into play when lawyers tweet and/or blog. Therefore, before you spend your firm's marketing dollars on a social media evangelist who wants to teach your firm how to tweet you may want to peel back the social media onion because you may be surprised with what you may find.
To learn more about these issues you may contact me at http://www.shearlaw.com/.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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