Is trademark and copyright law worthless in the social media age?

The Digital Millenium Copyright Act (DMCA) was signed into law in 1998 to protect the intellectual property rights of content creators while also providing a safe harbor for internet service providers and websites who act in good faith to remove infringing content once they become aware of the matter. The Lanham Act was enacted in 1946 and has been amended several times. In 1999, the Anticybersquatting Consumer Protection Act amended the Lanham Act to address domain name trademark issues.

Does the DMCA or the Lanham Act still work in the Social Media Age? On June 16, 2010, I blogged that intellectual property protection is useless in the social media age. Since that post, very little has been done to better protect content creators from the illegal use of their intellectual property without their permission or compensation. Congress has not been able to draft compromise intellectual property legislation that better protects digital intellectual property rights while also creating a fair and equitable system to protect innocent internet service providers and websites from liability.

According to a recent San Francisco Chronicle article, Facebook appears to be a haven for the sale of counterfeit goods. Ironically, the article mentions that Facebook has been notified about this issue but it appears they will not do anything about it unless the trademark holder personally contacts them. Does this response demonstrate that Facebook has a huge problem with ads for counterfeit goods on its platform? Under Viacom v. YouTube's latest appellate court ruling, will Facebook soon have significant legal liability issues to address?

The bottom line is that that it takes time for the law to catch up with technology.

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

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

Tax advantages for online companies may soon end

Mom and pop stores and companies that are primarily brick and mortar may soon be getting a more equal playing field with their online competitors due to a potential change in public policy and the law. This change is that online companies may soon be required to collect state sales tax for purchases made on the Internet even if the company doesn't have a place of business in the state where the consumer is located.

Some web based companies have relied on this tax advantage to grow their business. However, while online only businesses may have prospered because of this advantage some brick and mortar retailers appear to have been harmed. With the proliferation of instant price checks, social media, and other forms of new technology, this tax and price advantage has been magnified to a level never imagined.

This change in public policy may also help states collect much needed revenue from web based businesses. According to the Wall Street Journal, online shopping accounts for more than $200 billion dollars in revenues. If there is an average of a 6% sales tax on these sales that is $12 billion dollars in additional revenues for state governments that may be utilized to help close budget gaps, pay down debts, reduce layoffs, etc....

The bottom line is that a change in the law to expressly allow states to collect sales tax on Internet purchases is sound public policy. While I am not in favor of paying an additional 6% for goods I buy online as a Maryland resident, I am in favor of seeing more people purchase goods from local businesses whom I believe this public policy change may benefit.

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

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

Penn State Freeh Report on Sandusky proves NCAA schools should not social media monitor student athletes

"The Report of the Special Investigative Counsel Regarding the Actions of the Pennsylvania State University Related to the Child Sexual Abuse Committed by Gerald A. Sandusky" was released today. The author of the report, Louis Freeh stated, "the most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized".

The report's findings are more troubling than imagined. The report and Louis Freeh's public statements after the report's release indicate that Penn State engaged in a massive cover up to protect its reputation. I believe the linchpin of these findings was the digital evidence. Since the investigators were unable to interview former Penn State President Graham Spanier, former Athletic Director Tim Curley, former Vice President Gary Schultz, and former head coach Joe Paterno after emails indicating a cover up may have occurred a reasonable person may conclude a cover up happened.

Without the emails that indicated that all four men were aware of Sandusky's criminal activities in 2001, it would have been difficult to conclude that a cover up occurred. However, the digital evidene appears to indicate that a cover up went from the head coach through the athletic director to the president of Penn State.

This scandal demonstrates that schools should not hire social media monitoring companies to follow their student-athletes' or their employees' social media accounts. With access or knowledge comes responsibility. Companies with names like UDiligence, Varsity Monitor, Jump Forward, etc... are trying to persuade schools that they need to monitor their student-athletes in the digital world in a manner that they don't do so in the real world. Some companies claim that because they only monitor public and not password protected student-athlete content their services are better for universities. Unfortunately, the people who run these social media monitoring companies don't understand social media, NCAA compliance, or the law.

Once a school has been put on notice that one of their student-athletes has committed a crime they must follow the Clery Act and report it. What happens if a school is social media monitoring a star student-athlete and becomes aware that the student has or may have committed a crime or an NCAA infraction before a big game? Will the school suspend the student for the game or allow the student to play?

The bottom line is that athletic directors who continue to listen to self-described social media consultants may be putting not only their programs, but also their schools, and themselves at risk for tremendous legal liability. Did Joe Paterno ever think that emails from 10+ years ago could destroy his reputation and create tremendous legal liability for Penn State and/or his family? Therefore, why would any coach or athletic director want to create more digital evidence that may be utilized against his program and/or himself in the future?

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

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

Delaware passes student-athlete social media privacy legislation

Delaware is the first state to pass student social media privacy legislation. While HB 309: An Act to Amend Title 14 of the Delaware Code Relating to Education was passed by both the Delaware General Assembly and Senate over the weekend, it still needs to be signed by Delaware's governor to become law.

Delaware's HB 309 utilized Maryland's SB 434 as a template. Maryland's SB 434 passed the Maryland Senate 46-0 but died at the end of the legislative session due to the logjam created when the legislature was unable to pass a budget. Despite the setback in Maryland, multiple other states and Congress have introduced legislation that may protect schools from social media related lawsuits while also protecting the personal digital privacy rights of students.

HB 309 is needed because colleges and universities across the country are requiring some of their students to download social media monitoring software onto their personal electronic devices or accounts in order to keep their scholarships. This practice has become an epidemic. The CEO of one social media monitoring company has boasted that requiring students to provide access to password protected digital content “is the new drug testing — it will be as common as being asked to take a drug test in the next two years."

Under Delaware's HB 309, colleges and universities may not:
Require a student to provide his Facebook username and/or password to a school employee or agent of the school to obtain or keep a scholarship
Require a student to download social media monitoring software onto their personal iPhones, computers, accounts, etc...
Require a student to Facebook Friend a school employee or agent of the school

In return, Delaware colleges and universities may have a legal liability shield against claims that they have a legal duty to monitor their students' personal social media accounts. This legal liability shield may become extremely important in the near future in light of the recent lawsuit against the University of Virginia, its coaches, and athletic director for failing to properly monitor one of their star student-athletes.

Hiring social media consultants who advocate monitoring students' personal social media/digitial accounts may lead to lawsuits and judgements that may financially harm public schools and taxpayers. The bottom line is that colleges and universities in Delaware and across the country need to reexamine their general student and student-athlete social media policies to ensure that they do not violate state and/or federal law.

To learn more about legal student social media policies and how to properly educate your students and employees about social media you may contact me at http://shearlaw.com/attorney_profile.

(Full Disclosure: I advised Rep. Brady and Sen. Bushweller's offices on HB 309 to ensure that it would mutually benefit colleges, universities, and students.)

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

Occupy Wall Street Tweets May Be Subject to Subpoena

While the Occupy Wall Street protests have cooled down the past several months, the legal issues involved with them have heated up. According to the Wall Street Journal, a Manhattan judge recently ruled that Twitter has to turn over several months of an Occupy Wall Street protester’s tweets. The tweets may be utilized against the protestor at trial.

In April, the judge in the Occupy Wall Street protestor's case ruled that the protestor does not have the right to quash a subpoena for public tweets. At that time, I stated that, "I generally agree with the main point of this decision (that the protestor doesn't have the right to quash the subpoena) that public Tweets are fair game,"

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.

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.

Penn State Sandusky emails prove NCAA schools should not social media monitor their student-athletes

With access comes responsibility. For more than a year, I have been stating that NCAA schools do not have a duty to social media monitor their student-athletes' password protected social media/digital content. Earlier this year, the NCAA stated loud and clear that its member schools do not have a blanket duty to monitor their student-athletes' public social networking accounts in the University of North Carolina Public Infractions Report.

The latest twist in the Penn State Jerry Sandusky child abuse scandal proves once again that NCAA schools must be careful when drafting their student-athlete social media policies. According to a new CNN report, it appears that Penn State's Athletic Director Tim Curley, Vice President Gary Schultz, and President Graham Spanier discussed via email how to handle their knowledge that Jerry Sandusky may have sexually abused a child on Penn State's campus. The CNN report appears to indicate that according to emails it has obtained, Coach Joe Paterno was not in favor of reporting the information about an alleged sexual assault by Sandusky to the police.

According to the e-mails obtained by CNN, Spanier emailed Curley on February 27, 2001 and stated, "The only downside for us if the message isn't heard and acted upon, and then we become vulnerable for not having reported it". If this email is authenticated, it clearly demonstrates that with access/knowledge comes responsibility. Spanier appears to admit in the email that Penn State may have potential legal liability for intentionally not reporting Sandusky to the police.

These e-mails CNN allegedly obtained were written in 2001. Digital evidence from eleven years ago may be the smoking gun that demonstrates that Penn State knew about Sandusky but intentionally did nothing to stop Sandusky because it chose to protect its reputation instead of children who were preyed upon by Sandusky. This digital evidence appears to be extremely damaging to Penn State and may help plaintiff's lawyers successfully argue that Penn State should pay tens of millions of dollars for intentionally covering up the Sandusky matter. Therefore, why would any university want to create more opportunities for lawsuits by monitoring and archiving the digital content of their student-athletes or employees?

Unfortunately, some schools are listening to companies with names like UDiligence or Varsity Monitor. According to Deadspin.com, Varsity Monitor has multiple credibility issues and both Varsity Monitor and UDiligence appeared to lack any connection to college athletics or social media before their formation. What if a school finds out or has a strong reason to believe that their football superstar who is a leading candidate for the Heisman Trophy is engaging in illegal activity because of social media monitoring? What if the illegal activity harms a third party and the school did nothing to stop their star athlete because the school wanted the prestige of a Heisman Trophy winner or a national championship? The legal liability of the school may be tremendous.

The bottom line is that NCAA schools must create sensible social media policies that do not 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 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Penn State Sandusky guilty verdict proves NCAA schools should not hire social media monitoring companies to spy on their student-athletes or employees

The Penn State sex scandal is the worst scandal that any NCAA athletic department has ever encountered. Late last night, a jury found Jerry Sandusky, the former defensive coordinator of Penn State's football team guilty of 45 of 48 counts of child sex abuse.

Jerry Sandusky is by far the worst monster to have ever coached at an NCAA school. My heart goes out to all of Sandusky's victims. According to published media reports, it appears that Penn State may have known that Sandusky was a sexual predator since at least 1998 when he was initially investigated by Penn State Police. Unfortunately, at that time nothing was done to stop this predator from having access to Penn State facilities with young boys.

Since at least 2002, the Penn State athletic department knew about allegations that Sandusky may have raped a young boy at its athletic facilities but did nothing to report him to law enforcement or to stop him from having access to its facilities. Since it appears that the athletic department knew or should have known that Sandusky may be committing multiple sexual abuse crimes on its campus it may have significant civil legal liability. Administrators who lied about their knowledge of Sandusky's alleged criminal activities when questioned by police may also have criminal legal liability. In addition to potentially having criminal legal liability for lying about their knowledge of Sandusky's then alleged criminal activities, Penn State and its employees may also have significant civil liability for Sandusky's on and off-campus activities since it appears that Penn State knew that Sandusky may be committing multiple sexual crimes and did nothing to stop him.

If Penn State wasn't informed about Sandusky's alleged sexual abuse of young boys it would be very difficult to prove that Penn State and/or any of its employees should be held liable for not stopping these terrible activities. However, since it appears that Penn State coaches, athletic department members, and members of the university administration knew or should have known that Sandusky may be committing major crimes on and off campus Penn State and some current and/or former employees may have significant legal liability.

The Virgina Tech case should have been a wake up call that NCAA schools should not require their student-athletes or employees to provide access to their password protected digital content and/or to turn over their social media usernames. Next, the lawsuit by the family of a University of Virginia lacrosse player who was murdered by another student-athlete should have been another wake up call that athletic departments must stop these practices. Now, the Penn State guilty verdict appears to prove that if a university and/or its employees want to avoid legal liability for the digital content of their student-athletes or employees they must not require students or employees to provide access to their password protected personal digital content.

On November 15, 2011, I stated, if Penn State was aware of Sandusky's alleged criminal activities and failed to stop him the school may have major legal liability issues to defend against. Since it appears that Penn State knew about Sandusky's criminal behavior the economic cost of this matter to Penn State may be north of $100 million dollars due to court costs, litigation expenses, attorney fees, investigation costs, judgements, settlements, reputation costs, etc... It is premature to determine how much of these costs the school's insurance companies will pay but there is already litigation regarding the matter.

The Penn State sex scandal once again proves that NCAA schools need to ensure that their social media policies do not create unintended legal liability. Compliance personnel, coaches, or university employees who require their student-athletes or employees to turn over their social media usernames, passwords, or to download social media monitoring software, or to use any other unethical or illegal method to obtain access to their students' or employees' personal password protected digital content may create millions of dollars of legal liability for their schools and/or themselves.

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

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

Maryland's Social Media Judicial Ethics Opinion

Since 2010, Maryland has taken the lead in social media law and compliance. In 2010, Maryland became the first state to draft (Full Disclosure: I worked with the Maryland Board of Elections to draft the regulations) social media election regulations. These regulations treat state office digital campaign materials in the same manner as traditional campaign materials and do not put any extra burdens on candidates and their campaigns.

In 2011, the judiciary flexed its social media wings in Griffin v. State of Maryland, when it stated that social media evidence must be properly authenticated when introduced during trial. In 2012, Maryland became the first state to create social media privacy legislation that protects both employers and employees (Full Disclosure: I worked with multiple state lawmakers to pass this legislation). This legislation was groundbreaking and has been used as a template by at least 15 other states and multiple members of Congress.

On June 12, 2012, the Maryland Judicial Ethics Committee published an opinion providing guidance regarding the judiciary's use of social media. The main point of the decision is that, "a judge must recognize the use of social media networking sites may implicate several provisions of the Code of Judicial Conduct, and, therefore, proceed cautiously."

The Florida Supreme Court's Judicial Ethics Advisory Committee's opinion that prohibited judges from adding lawyers who may appear before them as "Facebook Friends" demonstrated a lack of understanding of social media. If judges can be friends in the real world and join the same social clubs as lawyers who appear before them they should be able to be Facebook Friends. California, New York, Kentucky, Ohio and South Carolina have taken a different position than Florida and their rules appear to generally demonstrate a better understanding of how online relationships are analogous to real world relationships.

The Maryland Judicial Ethics Committee appears to have taken a position that generally follows California, New York, Kentucky, Ohio, and South Carolina. The Maryland Judicial Ethics Committee stated "the mere fact of a social connection does not create a conflict" while referring to online social media connections. The bottom line is that Maryland once again has demonstrated an understanding of how social media intersects with the law.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

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

NCAA's New Social Media Recruiting Policy

The NCAA has updated its social media recruiting policy. The policy deregulates the number of texts, calls, and other forms of digital communication that coaches may have with potential recruits after they finish their sophomore year in high school.

While the previous policy was instituted with good intentions, it was very difficult to enforce and not flexible enough to adapt to the changing ways we communicate and interact. Unfortunately, there are some self-anointed sports social media consulstants who may try to convince schools that they understand social media, compliance, and the law and that schools should hire them to advise them on the NCAA's new policy. As I have written before, schools must perform due diligence on hiring companies who have incorrectly predicted future NCAA social media policy changes because some of these companies have been caught intentionally misrepresenting their credentials and lying to NCAA schools in order to obtain their business.

While coaches may now have the opportunity to send an unlimited number of digital messages to recruits, it would be wise not to over message and aggravate a high school student and/or his family. While social media and other forms of technology may help communicate with recruits, meeting a prospective future student-athlete face to face, shaking his hand, looking him in the eyes, and treating him with respect may still be the most productive way to determine if that person is a good fit for your program.

The bottom line is that schools should tread carefully in the social media space to avoid potential legal liability.

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

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

Did Facebook mislead investors regarding its user statistics in its S-1 Registration Statement?

Does Facebook have 900 million + users as its S-1 Registration Statement states as of March 31, 2012? Or, does Facebook have 900 million + monthly open accounts? Whether Facebook has 900 million + users or 526 million users (daily users as of March 31, 2012 as reported in the S-1), these are still massive numbers that have tremendous monetization opportunities.

Investors may want a more accurate answer regarding Facebook's number of users in light of police assertions that alleged Canadian killer Luke Magnotta had 70 different Facebook accounts under different names. Do most people have multiple Facebook accounts? Was Luke Magnotta's 70 Facebook accounts an anomaly among Facebook's users or do a significant number of Facebook's users have multiple accounts?

I don't know how many users vs. how many open accounts Facebook has and it appears that Facebook may not be able to accurately measure this distinction on its platform. Facebook estimates “false or duplicate accounts may have represented approximately 5-6%” of its monthly active users as of the end of 2011. Is this figure correct? Instead of stating in its S-1 that it has 900 million + monthly active users it may have been more accurate for Facebook to state that it has 900 million + monthly open accounts since it appears easy for anyone to have multiple accounts.

I don't want to speculate on whether Facebook made any material misrepresentations in its S-1 Registration Statement regarding its user statistics. Should Facebook along with other digital platforms focus on the number of monthly open accounts (MOA's) instead of the number of monthly active users (MAU's) since Luke Magnotta has demonstrated how easy it is to open multiple Facebook accounts? If an alleged killer has 70+ Facebook accounts how many accounts does the average Facebook user have? Is a more accurate definition of actively engaged unique digital platform users needed?

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

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

Baltimore Sun editorial about Morgan State student's alleged cannabalism demonstrates it does not understand social media public policy

The Baltimore Sun was the paper I grew up reading and it is the source I utilize to see what is going on in my hometown. The recent allegations that Morgan State student Alexander Kinyua killed and ate pieces of his roommate in his off-campus apartment has made headlines all over the world.

This incident is a terrible tragedy and my heart goes out to Mr. Kinyua's victims and their families. Unfortunately, the Baltimore Sun editorial page has demonstrated that it does not understand social media public policy when it wrote about this incident on June 5, 2012. It asked the question, "Was anyone at the university looking at Mr. Kinyua's Facebook page" and appeared to infer that the university may have a duty to review their students' social media accounts.

As long as a school does not require its students to Facebook Friend teachers and/or university officials and/or agents of the school, and/or require students to download social media monitoring software onto their personal accounts/electronic devices, schools do not have a duty to monitor their students' social media accounts. In general, schools do not have a duty to monitor their students off campus in the real world so schools should not create a duty to monitor their students off campus in the digital world.

Does the Baltimore Sun advocate our schools requiring students to register their usernames with their academic institutions? China requires their social media users to register their usernames through their microblog identification program so the government can track what everyone is saying and doing online. While that policy may work in China, we have a Constitution and a long history of protecting anonymous free speech.

With access comes responsibility. If our public schools become the social media police, plaintiffs may be able to successfully argue that schools have a duty to social media monitor their students' personal digital content. Therefore, before the Baltimore Sun makes any future comments relating to social media public policy it should be well versed in the ramifications of what it may be advocating.

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

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

Are UDiligence and Varsity Monitor advising NCAA schools to violate the Stored Communications Act?

Over the past couple of years, companies with names like UDiligence and Varsity Monitor have been created to monitor the digital activity of student-athletes. At first glance it may seem like a good idea to require students to provide access to password protected social media content. However, once you understand what this means from a legal and financial perspective you may realize that this is a Pandora's Box that should not be opened.

UDiligence and Varsity Monitor appear to prey on the fears of college athletic departments even though the NCAA recently ruled that schools do not have a duty to monitor password protected social media content. Instead of helping NCAA athletic departments, these services may be exacerbating the situation because it appears they may be encouraging colleges to create new legal duties and violate the constitutional rights of their students along with multiple federal and state laws.

Within the past couple of weeks, both UDiligence and Varsity Monitor have taken down their client lists from their websites. Have the schools pressured them to do so? Or, did both of these companies take down their client lists because the media has started to ask in-depth questions about their services?

Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009), is a case that appears analogous to the situation where schools are "requesting" that their student-athletes provide access to their password protected digital/social media accounts. In Pietrylo, an employee "did not feel free" to deny her boss access to a password protected MySpace account. The jury found that the employer violated the Stored Communications Act and the case was upheld on appeal. Therefore, since students "may not feel free" to deny their athletic departments and/or third parties access to their password protected social media accounts these services may be advising schools to violate the Stored Communications Act.

Since requesting employees to provide access to their password protected social media accounts has been found to violate the Stored Communications Act, it may also violate the Stored Communications Act for NCAA schools to "request" access to their students' password protected social media accounts. Requiring public school students to download applications and/or Facebook Friend university employees or agents may also violate the 1st and 4th Amendments along with the Electronic Communications Privacy Act, and multiple other federal and state laws.

The bottom line is that schools that engage UDiligence or Varsity Monitor may be paying $10,000 plus dollars per year for a service that may be creating more problems than it solves.

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

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

SNOPA (HR 5050) May Protect Insurance Companies From Schools and Businesses That Demand Access To Personal Password Protected Social Media Accounts

I have written how the Social Networking Online Protection Act (HR 5050) may benefit employees, job applicants, employers, students, student applicants, and schools. Now, I am going to explain how HR 5050 may benefit insurance companies.

Does the insurance industry realize that multiple schools are creating a massive database of their students' password protected social media content and activities? With access to all of this data these schools may become responsible for everything their students do online and everything that is referenced online and/or inferred online that may occur in the real world.

The Universities of North Carolina, Texas, Nebraska, and Oklahoma may not only be violating the Stored Communications Act with their student-athlete social media policies but also may be creating tremendous insurability problems for their academic institutions.

Each of the above mentioned schools have engaged a company called Varsity Monitor. In order for students to keep their scholarships and play intercollegiate sports at these public institutions, they must Facebook Friend Varsity Monitor and provide unfettered access to their password protected social media/digital content. Varsity Monitor downloads the students' social media content and creates detailed reports about all of the students' digital activities. Requiring a student to provide access to their password protected social media/digital content may violate FERPA and/or other federal and/or state laws

Varsity Monitor along with above schools are compiling vast amounts of personal data on thousands of students. What happens when there is a data breach? In Varsity Monitor's agreements and policies it clearly states that by using their service they are indemnified against any legal issues that may arise. Therefore, when a data breach occurs who will be left paying for it? The schools' insurance companies.

According to the latest Ponemon Data Breach Study, the average cost of a data breach is $194 per record and the overall average organizational cost is $5.5 million dollars. These figures appear to be focused on what I would call traditional data breach issues (compromised social security numbers, dates of births, addresses, etc...) and not personal social media data breach issues (which may include traditional issues plus a list of friends, professional contacts, personal photographs, confidential interactions, potential blackmail information, etc...). Furthermore, according to Ponemon the biggest threat to data breach are those who have access to the data. Therefore, when a student-athlete becomes famous and his social media content contains embarrassing information will Varsity Monitor and/or school employees who have access to the data leak the password protected personal content for personal gain?

Are schools prepared for the increase in legal discovery requests that will accompany all of the data they have accumulated on their students? Are schools telling their insurance companies that they are accumulating all of this unneeded personal data on their students? Do the schools that engage Varsity Monitor or similar service providers such as UDiligence, or Centrix Social know that a data breach at Ohio State a couple years ago may have cost the University $4 million dollars to resolve. These costs included: investigative consulting, notification of the breach, and a calling center to answer questions or concerns.

Ohio State's insurance company may have covered the entire cost of this incident. However, will the insurance industry be willing to cover an incident when a school and/or Varsity Monitor mishandles personal password protected social media content and/or when a school is sued for negligent social media monitoring? This type of lawsuit may contain some of the same arguments as the recent $30 million dollar lawsuit against UVA by the family of Yardley Love. However, because of digital evidence a jury in a negligent social media monitoring lawsuit may award $100 million dollars plus to a plaintiff. If you don't think this could happen you may want to ask Dharun Rhavi's lawyer about the power of social media evidence.

If the insurance industry wants to be protected from having to pay out claims against schools and/or businesses who are requiring their students and/or employees to provide access to their password protected digital content they will support the Social Networking Online Protection Act (HR 5050).

(Full Disclosure: I am working pro bono with Rep. Engel's office on the Social Networking Online Protection Act .)

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

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

NCAA Schools That Require Their Students To Facebook Friend Them May Be Violating the Stored Communications Act

Any school or university that requires its students to Facebook Friend a coach, a school administrator, or a third party in order for their students to keep their scholarships, participate in intercollegiate athletics, etc... may be violating the Stored Communications Act (SCA).

Under the Stored Communications Act, forced Facebook Friending may be against the law. Since the SCA was enacted in 1986, before the existence of modern social media, the Social Networking Online Protection Act (SNOPA) is needed to catch up with modern technology. Any school or university employee who believes that it is legally prudent to require their students to provide them access to their personal password protected digital content without a court order may want to learn more about the lawsuit against the University of Virginia (UVA) by the family of Yardley Love.

Yardley Love was a student-athlete at UVA who was murdered by fellow UVA student-athlete George Huguely. According to ABC News, Yardley Love's family is suing the coaches of the men's lacrosse team along with the athletic director because they allegedly knew or should have known that George Huguely was a danger to others. If UVA was social media monitoring George Huguely and missed or misinterpreted a Tweet, or a Facebook post, or other online content that may have indicated he may be a danger to others this $30 million dollar lawsuit against UVA may have been a $100 million dollar plus lawsuit.

With access comes responsibility. Schools and/or universities that require their students to Facebook Friend coaches, school employees, third parties, etc... and/or require students to install social media monitoring software onto their personal electronic devices may become liable for their students' online content and conduct along with offline conduct that was referred to and/or inferred by a Tweet, Facebook post, blog comment, etc.... Does a school or university want to be sued for negligent social media monitoring or failure to social media monitor?

If a school or university legal department wants to protect itself against these types of social media lawsuits they will enthusiastically support the Social Networking Online Protection Act (HR 5050) because it may provide them a legal liability shield against these claims. If a school or university wants to become the social media police and become liable for their students' online behavior and offline behavior that may have been referred to and/or inferred online that is their prerogative. If so, they may want to obtain cyber liability insurance that contains at least $100 million dollars in per incident coverage to protect against social media lawsuits.

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

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

Maryland's Facebook Username and Password Law is a Win For Employers, Employees, and Job Applicants

Maryland Governor Martin O'Malley signed into law today legislation that makes Maryland the first state to ban employers from requiring employees or job applicants to provide access to their personal digital/social media accounts. While Maryland is the first state to enact this type of legislation, California along with other states and the federal government may soon follow Maryland's lead.

Senate Bill 433 is a huge win for the business community because it may provide Maryland businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' password protected digital content. Unfortunately, some Maryland business groups have underestimated the tremendous win that SB 433 is for the business community. This groundbreaking law may collectively save Maryland businesses millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save Maryland businesses 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 Maryland 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 everything their employees do in the privacy of their real world homes so employers do not want to create a duty to monitor their employees in their digital homes.

Do businesses want to have access to content that may demonstrate that an employee is a member of a protected class? There already is a lawsuit alleging "Facebook Like Discrimination". In this lawsuit, a former federal employee alleges that he was discriminated against because his supervisor became aware that he "Facebook Liked" a page that may have indicated his sexual orientation. Therefore, this new law may save employers millions of dollars per year in legal fees and judgments that may accompany access to an employee's personal digital content.

This legislation is also a major victory for employees and job applicants. A Maryland employer 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 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. This is a watershed moment for both the business community and digital privacy. I hope that other states along with the federal government follow Maryland's lead to enact legislation that demonstrates an understanding of the legal and public policy implications of the Social Media Age.

(Full Disclosure: I was not paid for my work on this legislation. I worked on this legislation because I want to protect employers, employees, and job applicants from unforeseen legal issues that may arise due to a lack of understanding of the public policy and legal implications of social media usage. Therefore, I was in constant contact with Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to work with them to create a common sense solution that protects the interests of employers, employees, and job applicants.)

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.