Twitter has been ordered to turn over the public Tweets of Occupy Wall Street protestor Malcolm Harris. The ruling is not surprising since the Tweets were previously public and anyone with Internet access could view them. The Tweets are no longer available online; however, they have been saved on Twitter's servers. Twitter and Harris' attorney have been trying to quash the Manhattan district attorney's subpoena demanding the Tweets but have been unsuccessful.
On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.
On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.
While I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users.
To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, September 11, 2012
Thursday, September 6, 2012
Will Australia's proposed digital data retention law put its citizens at risk?
Governments around the world are trying to determine how to implement digital public policy that takes into account how people are utilizing social media and other new technology platforms. Unfortunately, some lawmakers and governments are making proposals that may have unintended side effects.
For example, the Australian government recently proposed a digital data retention law that may create an undue burden on Internet service providers and technology companies. In addition, this proposal sharply curtails Internet users' digital privacy and creates more opportunities for cyber criminals. According to Computerworld, if enacted the new law would require technology companies to retain their users' data for up to two years which may include their customers' web surfing history information.
Putting aside the privacy issues, the Australian government may not realize that the more data a company is required to collect the greater its compliance costs and cyber liability insurance premiums. More data retention means increased server costs, higher electricity bills, greater security costs, etc....
While the intention of the proposed law is noble in that the government believes the law would assist in fighting crime, there may be some unintended side effects. When companies collect more data about their customers they become bigger targets for cyber criminals.
Therefore, it is imperative for governments to create sound digital public policy that properly weighs all of these concerns.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
10 tips to determine if a sports social media consultant is a fraud
In the past couple of years, multiple consulting companies have suddenly appeared on the scene to claim they are sports social media experts, gurus, leaders, trainers, etc... These firms are pitching colleges and universities to hire them to monitor their student-athletes' Tweets, Facebook posts, YouTube videos, and/or to "educate" student-athletes, coaches, administrators, etc... about social media matters.
To claim one is a sports social media consultant the barrier to entry is very low. From looking at the lack of credentials from most of those selling themselves as social media experts it appears that the only tools needed are: Internet and phone access, and a Slideshare account. With these three things you can create a free or low cost website and/or a free blog, open a free Twitter account, and create social media presentations based upon the work of others. Some of these "self anointed social media experts" may also buy a software package or create an application to track the online activities of student-athletes that may create tremendous legal problems for the schools that utilize these programs.
To claim one is a sports social media consultant the barrier to entry is very low. From looking at the lack of credentials from most of those selling themselves as social media experts it appears that the only tools needed are: Internet and phone access, and a Slideshare account. With these three things you can create a free or low cost website and/or a free blog, open a free Twitter account, and create social media presentations based upon the work of others. Some of these "self anointed social media experts" may also buy a software package or create an application to track the online activities of student-athletes that may create tremendous legal problems for the schools that utilize these programs.
The Tweets, blog posts, and presentations of these self-called experts may appear to indicate that these consultants are the real McCoy. However, once due diligence is performed on these "social media experts" it becomes evident that almost none of them have any bona fide credentials or knowledge that demonstrates they should be advising NCAA schools, student-athletes, coaches, administrators, etc... on social media and/or any issues pertaining to college athletics.
To ensure that NCAA schools do not fall victim to these self-anointed experts who do not have the best interests of schools, athletic departments, and student-athletes in mind, below is a list of characteristics to help determine if a self described NCAA social media consultant, expert, guru, trainer, leader, etc... is a fraud:
1) The consultant advises schools to buy his social media monitoring software to track and/or archive student-athletes' password and/or non-password protected online activity.
2) The consultant advises schools to request or require students to register their social media user names and/or passwords with athletic departments and/or third parties.
5) The consultant incorrectly predicted how the NCAA's social media monitoring allegation against the University of North Carolina would be resolved.
6) The consultant follows more people on his professional Twitter account than are following him back.
7) The consultant's social media credentials appear too good to be true which may indicate social media credential fraud.
8) The consultant claims that schools that utilize his social media monitoring program will not be violating any current/future laws or creating the potential for tremendous legal liability.
9) The consultant has no verifiable professional social media experience prior to 2011.
To ensure that NCAA schools do not fall victim to these self-anointed experts who do not have the best interests of schools, athletic departments, and student-athletes in mind, below is a list of characteristics to help determine if a self described NCAA social media consultant, expert, guru, trainer, leader, etc... is a fraud:
1) The consultant advises schools to buy his social media monitoring software to track and/or archive student-athletes' password and/or non-password protected online activity.
2) The consultant advises schools to request or require students to register their social media user names and/or passwords with athletic departments and/or third parties.
3) The consultant advises schools to request or require that student-athletes Facebook Friend schools and/or third parties.
4) The consultant has no verifiable professional social media and/or sports experience before starting his sports social media consulting company.
5) The consultant incorrectly predicted how the NCAA's social media monitoring allegation against the University of North Carolina would be resolved.
6) The consultant follows more people on his professional Twitter account than are following him back.
7) The consultant's social media credentials appear too good to be true which may indicate social media credential fraud.
8) The consultant claims that schools that utilize his social media monitoring program will not be violating any current/future laws or creating the potential for tremendous legal liability.
9) The consultant has no verifiable professional social media experience prior to 2011.
10) The consultant has public Twitter conversations that may be better suited via direct message and/or another more discreet format.
If a social media consultant approaches an NCAA institution and has more than one of these characteristics it most likely indicates that the consultant is not the expert, leader, guru, etc... that he claims to be but a fraud whose advice may put the safety of a university and/or its students at risk and may create tremendous legal liability for universities, coaches, athletic department administrators, and/or student-athletes.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
If a social media consultant approaches an NCAA institution and has more than one of these characteristics it most likely indicates that the consultant is not the expert, leader, guru, etc... that he claims to be but a fraud whose advice may put the safety of a university and/or its students at risk and may create tremendous legal liability for universities, coaches, athletic department administrators, and/or student-athletes.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Thursday, August 30, 2012
California: First state to pass comprehensive social media privacy legislation
California has become the first state to pass social media privacy legislation that protects employers/employees/job applicants and schools/students/student applicants. According to The Recorder, California has passed AB 1844 which prohibits employers from requiring access to their employees' or job applicants' personal social media credentials and personal password protected digital content. Last week, California passed student social media privacy legislation that would prohibit post-secondary educational institutions from requiring access to their students' or student applicants' personal social media credentials and personal password protected digital content.
Earlier this year, Maryland and Illinois enacted social media privacy legislation that may protect employers from social media related lawsuits while also protecting the personal privacy of employees and job applicants. Last month, Delaware enacted social media privacy legislation that may protect schools against social media related lawsuits while also protecting the personal privacy of students and student applicants. However, California is the first state to pass comprehensive legislation that protects employers/employees/job applicants and schools/students/student applicants. If Governor Brown signs both SB 1349 and AB 1844, California will become the first state to enact across the board social media privacy legislation.
AB 1844 is a huge win for the business community because it may provide California businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' personal password protected digital content. This legislation may collectively save California businesses tens of millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save California businesses tens of millions of dollars per year on cyber liability insurance premiums that would accompany a duty to monitor employees in the digital/social media space.
With access comes responsibility. Since California businesses will not have access to their employees' personal digital content they will not become responsible for their employees' personal social media behavior. Employers do not have a duty to monitor their employees' activities outside of work in the real world so employers should not create a duty to monitor their employees' non-corporate digital activities.
This legislation is also a major victory for employees and job applicants. California employers may no longer ask employees or job applicants to provide access to their personal digital or social media accounts. For example, during a job interview an employer may not request an applicant log into their personal Facebook account or to "Facebook Friend" a hiring manager. In addition, an employer may not require an employee provide access to their personal password protected digital accounts. Job applicants and employees must understand that they should still be careful about the content they post online, utilize the proper privacy settings, and carefully screen who they "Friend" online.
(Full Disclosure: I advised California Assembly Member Campos' office on this legislation.)
Earlier this year, Maryland and Illinois enacted social media privacy legislation that may protect employers from social media related lawsuits while also protecting the personal privacy of employees and job applicants. Last month, Delaware enacted social media privacy legislation that may protect schools against social media related lawsuits while also protecting the personal privacy of students and student applicants. However, California is the first state to pass comprehensive legislation that protects employers/employees/job applicants and schools/students/student applicants. If Governor Brown signs both SB 1349 and AB 1844, California will become the first state to enact across the board social media privacy legislation.
AB 1844 is a huge win for the business community because it may provide California businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' personal password protected digital content. This legislation may collectively save California businesses tens of millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save California businesses tens of millions of dollars per year on cyber liability insurance premiums that would accompany a duty to monitor employees in the digital/social media space.
With access comes responsibility. Since California businesses will not have access to their employees' personal digital content they will not become responsible for their employees' personal social media behavior. Employers do not have a duty to monitor their employees' activities outside of work in the real world so employers should not create a duty to monitor their employees' non-corporate digital activities.
This legislation is also a major victory for employees and job applicants. California employers may no longer ask employees or job applicants to provide access to their personal digital or social media accounts. For example, during a job interview an employer may not request an applicant log into their personal Facebook account or to "Facebook Friend" a hiring manager. In addition, an employer may not require an employee provide access to their personal password protected digital accounts. Job applicants and employees must understand that they should still be careful about the content they post online, utilize the proper privacy settings, and carefully screen who they "Friend" online.
(Full Disclosure: I advised California Assembly Member Campos' office on this legislation.)
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, August 28, 2012
Does Prince Harry have a claim for invasion of privacy?
Some naked photos of the United Kingdom's Prince Harry have been leaked online. There are rumors that there is also video of Prince Harry in the buff quietly being shopped to the highest bidder. These photos and the video were allegedly taken in the privacy of Prince Harry's private hotel suite in Las Vegas, Nevada.
In Montesan v. Donrey Media Group, 668 P.2d 1081 (1983), Nevada reiterated that it has impliedly recognized an action for invasion of privacy. According to the Second Restatement of Torts, § 652D (1977), in order to maintain a cause of action for invasion of privacy it must be proven that a public disclosure of private facts has occurred which would be offensive and objectionble to a person of ordinary sensibilities.
Does Prince Harry have an expectation of privacy in his private hotel room? Did Prince Harry give up his right to privacy when he invited others into his personal hotel suite? Could the person(s) who are allegedly shopping these photos and/or videos be charged with state and/or federal crimes? Does Prince Harry have a civil cause of action against the person(s) who shot the video?
In the criminal case against Dharun Ravi for webcasting a sexual encounter that his roommate had with another person in the privacy of their shared Rutgers University dorm room Ravi was found guilty of invasion of privacy. Since people generally have an expectation of privacy in their dorm rooms and own homes should they also have an expectation of privacy in their hotel suites?
How far should this right extend in the Social Media Age?
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Does Prince Harry have an expectation of privacy in his private hotel room? Did Prince Harry give up his right to privacy when he invited others into his personal hotel suite? Could the person(s) who are allegedly shopping these photos and/or videos be charged with state and/or federal crimes? Does Prince Harry have a civil cause of action against the person(s) who shot the video?
In the criminal case against Dharun Ravi for webcasting a sexual encounter that his roommate had with another person in the privacy of their shared Rutgers University dorm room Ravi was found guilty of invasion of privacy. Since people generally have an expectation of privacy in their dorm rooms and own homes should they also have an expectation of privacy in their hotel suites?
How far should this right extend in the Social Media Age?
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Friday, August 24, 2012
South Korea bans social media account registration
South Korea's highest court unanimously ruled that South Koreans are not required to register their user names or other online account information in order to make comments on the Internet. This reaffirms that South Korea will protect freedom of speech on social media and other online platforms.
When applying this law to universities in South Korea, it appears to mean that public school students are not required provide their schools their social media user names or other digital account information. In a democratic society, public schools may not require their students to register their Facebook accounts, Twitter handles, and/or other social media credentials in order to obtain or keep their scholarships. It is clearly unconstitutional for a U.S. public university to demand that their students register their digital or social media usernames or online persona with a university or a third party in order to keep their scholarship or participate in extracurricular activities. This protection extends to all students including student-athletes and other students on scholarship.
Unfortunately, there are multiple U.S. public colleges and universities that are following the advice of self-described social media consultants who are pitching schools on requiring their student-athletes to register their social media usernames with their schools and/or Facebook Friend a coach and/or download social media monitoring software so the school may identify the student's online persona and track their online behavior.
Any social media consultant that advocates schools utilize a social media monitoring service to track their student-athletes' online behavior is a snake oil salesman that should not be trusted because this advice may create tremendous legal liability for those universities and individuals who follow this advice.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
When applying this law to universities in South Korea, it appears to mean that public school students are not required provide their schools their social media user names or other digital account information. In a democratic society, public schools may not require their students to register their Facebook accounts, Twitter handles, and/or other social media credentials in order to obtain or keep their scholarships. It is clearly unconstitutional for a U.S. public university to demand that their students register their digital or social media usernames or online persona with a university or a third party in order to keep their scholarship or participate in extracurricular activities. This protection extends to all students including student-athletes and other students on scholarship.
Unfortunately, there are multiple U.S. public colleges and universities that are following the advice of self-described social media consultants who are pitching schools on requiring their student-athletes to register their social media usernames with their schools and/or Facebook Friend a coach and/or download social media monitoring software so the school may identify the student's online persona and track their online behavior.
Any social media consultant that advocates schools utilize a social media monitoring service to track their student-athletes' online behavior is a snake oil salesman that should not be trusted because this advice may create tremendous legal liability for those universities and individuals who follow this advice.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Gay Federal Employee Allegedly Fired For Facebook Like Sues
A former federal employee has filed a lawsuit alleging that he was fired because of a Facebook Like. This is reminiscent of another recent lawsuit where an employee alleges he was fired for Facebook Liking the page of his supervisor's political opponent.
If employers have access to their employee's social media accounts and they learn about an employee's protected status and they fire an employee based upon this information this may open the employer up to tremendous legal liability.
In schools, requiring student-athletes to provide access to their social media accounts may also open up schools to discrimination claims. What would happen if a coach finds out one of his student-athletes is gay because of a Facebook Like or the content posted by one of the student-athlete's Facebook Friends and then the coach discriminates against the student-athlete?
The above mentioned examples demonstrate why employers and schools should not want to be able to freely access their employees' or students' social media content. If employers and schools are unable to access this information this may lower the number of discrimination allegations and/or lawsuits. Unfortunately, there are still employers and schools that don't understand these issues and because of this lack of understanding state and federal digital media privacy laws are needed to protect employers, employees, job applicants, schools, students, and student applicants.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
If employers have access to their employee's social media accounts and they learn about an employee's protected status and they fire an employee based upon this information this may open the employer up to tremendous legal liability.
In schools, requiring student-athletes to provide access to their social media accounts may also open up schools to discrimination claims. What would happen if a coach finds out one of his student-athletes is gay because of a Facebook Like or the content posted by one of the student-athlete's Facebook Friends and then the coach discriminates against the student-athlete?
The above mentioned examples demonstrate why employers and schools should not want to be able to freely access their employees' or students' social media content. If employers and schools are unable to access this information this may lower the number of discrimination allegations and/or lawsuits. Unfortunately, there are still employers and schools that don't understand these issues and because of this lack of understanding state and federal digital media privacy laws are needed to protect employers, employees, job applicants, schools, students, and student applicants.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, August 21, 2012
California passes student social media privacy legislation
California has passed Senate Bill 1349. The bill is a win for California schools, taxpayers, students, and prospective students. If Governor Brown signs the bill it may help increase enrollment in California schools because it signals to the entire world that California is a leader in digital privacy and common sense technology law.
The legislation does not appear to have any implementation costs for California and may save California schools and taxpayers millions of dollars per year. According to the New York Times, it may cost approximately $10,000 per year to social media monitor a small segment of a school's student population. There appears to be more than 150 4-year post secondary academic institutions based in California. Therefore, if you multiply 150 x $10,000 this may save California 4-year post secondary schools at least $1.5 million dollars per year. This does not factor in some of the potential savings from not needing increased cyber liability insurance policies, legal fees to review the social media monitoring contracts between the schools and monitoring companies, and the cost to defend against negligent social media monitoring lawsuits or the failure to social media monitor lawsuits. Overall, the cost savings to California post secondary schools and taxpayers may exceed $5 million per year.
Any company that approaches NCAA sanctioned schools to sell social media monitoring services is selling a legal liability time bomb. Yesterday, there was a very troubling Louisville Courier-Journal report that stated that the University of Kentucky via a company called Centrix Social was social media monitoring some of its students and flagging them for using the term "Arab" or "Muslim" online. Centrix Social was recently acquired by Varsity Monitor who according to Deadspin.com appears to have some ethical challenges.
If SB 1349 is enacted, it may protect California schools from millions of dollars in additional compliance and regulatory costs, and millions of dollars in potential legal liability costs associated with social media related lawsuits.
(Full Disclosure: I advised California Sen. Yee's office on this legislation.)
The legislation does not appear to have any implementation costs for California and may save California schools and taxpayers millions of dollars per year. According to the New York Times, it may cost approximately $10,000 per year to social media monitor a small segment of a school's student population. There appears to be more than 150 4-year post secondary academic institutions based in California. Therefore, if you multiply 150 x $10,000 this may save California 4-year post secondary schools at least $1.5 million dollars per year. This does not factor in some of the potential savings from not needing increased cyber liability insurance policies, legal fees to review the social media monitoring contracts between the schools and monitoring companies, and the cost to defend against negligent social media monitoring lawsuits or the failure to social media monitor lawsuits. Overall, the cost savings to California post secondary schools and taxpayers may exceed $5 million per year.
Any company that approaches NCAA sanctioned schools to sell social media monitoring services is selling a legal liability time bomb. Yesterday, there was a very troubling Louisville Courier-Journal report that stated that the University of Kentucky via a company called Centrix Social was social media monitoring some of its students and flagging them for using the term "Arab" or "Muslim" online. Centrix Social was recently acquired by Varsity Monitor who according to Deadspin.com appears to have some ethical challenges.
If SB 1349 is enacted, it may protect California schools from millions of dollars in additional compliance and regulatory costs, and millions of dollars in potential legal liability costs associated with social media related lawsuits.
(Full Disclosure: I advised California Sen. Yee's office on this legislation.)
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Friday, August 17, 2012
Will the International Olympic Committee strip Michael Phelps of his gold medals because of leaked Louis Vuitton photos?
On June 28, 2011, I was one of the first to analyze the new International Olympic Committee's social media regulations. When the regulations initially were released, I immediately noticed that there may some major challenges with the policies. At that time I stated, "In general, the IOC's Social Media Policy appears to be a good starting point for discussion. However, the points I mention above need to be addressed before the Games begin to lessen the likeliehood that social media compliance misunderstandings may occur."
During a conversation I had with ReadWriteWeb that was published on June 26, 2012, I stated that the "IOC’s social media policy is, at best, a work in progress, and that both official Olympic sponsors and the IOC will likely learn some hard lessons as the 2012 games progress." For example, under the IOC's Rule 40 (their social media regulations) Michael Phelps could be stripped of all of his medals because during the Olympics some photographs were leaked online of him that also contained Louis Vuitton merchandise and Louis Vuitton was not an official Olympic sponsor.
I highly doubt that Michael Phelps will be stripped of his 2012 Olympic medals because the negative press would create a huge black mark on a highly successful Olympic Games. However, as our world becomes more digitized the IOC must prepare for the possibility that similar situations may occur in the future and adjust their social media regulations accordingly before the 2014 Winter Olympics.
To learn more about these issues you may contact me at www.shearlaw.com
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
During a conversation I had with ReadWriteWeb that was published on June 26, 2012, I stated that the "IOC’s social media policy is, at best, a work in progress, and that both official Olympic sponsors and the IOC will likely learn some hard lessons as the 2012 games progress." For example, under the IOC's Rule 40 (their social media regulations) Michael Phelps could be stripped of all of his medals because during the Olympics some photographs were leaked online of him that also contained Louis Vuitton merchandise and Louis Vuitton was not an official Olympic sponsor.
I highly doubt that Michael Phelps will be stripped of his 2012 Olympic medals because the negative press would create a huge black mark on a highly successful Olympic Games. However, as our world becomes more digitized the IOC must prepare for the possibility that similar situations may occur in the future and adjust their social media regulations accordingly before the 2014 Winter Olympics.
To learn more about these issues you may contact me at www.shearlaw.com
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Has Facebook created a legal duty to monitor for illegal activity?
Does Facebook have a legal duty to monitor for illegal activity on its website? Facebook is an international company with its headquarters in California. However, Facebook must comply with the laws of every jurisdiction where it operates.
In Australia, Facebook was recently pressured to remove a page that was alleged racist. At first, it appeared that Facebook claimed that because it is based in California it did not have to comply with Australia's anti-discrimination laws. However, after more public and governmental pressure Facebook eventually removed the controversial page.
A series of Facebook chats in Canada recently caught the attention of Facebook's staff who reported it to Winnipeg law enforcement officials. Detectives arrested a suspect and he is now facing charges of sexual assault, sexual interference, and luring. It may have been noble of Facebook to report an alleged criminal act but what would have happened if Facebook knew about the chats but didn't report them?
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
In Australia, Facebook was recently pressured to remove a page that was alleged racist. At first, it appeared that Facebook claimed that because it is based in California it did not have to comply with Australia's anti-discrimination laws. However, after more public and governmental pressure Facebook eventually removed the controversial page.
A series of Facebook chats in Canada recently caught the attention of Facebook's staff who reported it to Winnipeg law enforcement officials. Detectives arrested a suspect and he is now facing charges of sexual assault, sexual interference, and luring. It may have been noble of Facebook to report an alleged criminal act but what would have happened if Facebook knew about the chats but didn't report them?
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Wednesday, August 8, 2012
Liking a Facebook Page May Be Constitutionally Protected Free Speech
Social Media has become a major free speech battleground around the world. For example, earlier this year Pakistan banned Twitter for a period of time because Twitter refused to delete tweets that were alleged to be blasphemy.
In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.
These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.
In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."
The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.
The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.
These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.
In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."
The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.
The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Monday, August 6, 2012
Australia Rules Social Media Brand Pages Are Ads
In Australia, social media is no longer considered just a medium to connect with your friends or family. It has now been officially recognized as a form of advertising that should be treated in the same manner as other advertising platforms.
According to the Sydney Morning Herald, a new ruling may require Australian companies to vet comments posted by the public on their social media pages to ensure they are not sexist, racist or factually inaccurate. Companies doing business in Australia may be fined for comments that appear on their social media brand pages. The Australian Standards Board "determined that the provisions of the Code (advertising) apply to an advertiser’s Facebook page."
The increasing regulation of social and digital media is expected. It is the natural progression of the acceptance of social media as a legitimate advertising and monetization avenue for brands. Last year, the U.S. Better Business Bureau took a stand against unethical social media advertising practices and this occurred soon after the FTC started to crack down on fake online reviews.
Therefore, I believe the Federal Trade Commission may soon increase its social media advertising enforcement.
According to the Sydney Morning Herald, a new ruling may require Australian companies to vet comments posted by the public on their social media pages to ensure they are not sexist, racist or factually inaccurate. Companies doing business in Australia may be fined for comments that appear on their social media brand pages. The Australian Standards Board "determined that the provisions of the Code (advertising) apply to an advertiser’s Facebook page."
The increasing regulation of social and digital media is expected. It is the natural progression of the acceptance of social media as a legitimate advertising and monetization avenue for brands. Last year, the U.S. Better Business Bureau took a stand against unethical social media advertising practices and this occurred soon after the FTC started to crack down on fake online reviews.
Therefore, I believe the Federal Trade Commission may soon increase its social media advertising enforcement.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Thursday, August 2, 2012
Illinois Enacts Social Media Privacy Law
Illinois has become the third state to enact a law that pertains to social media privacy. Earlier this year, Maryland enacted a law that protects employers, employees, and job applicants and Delaware enacted a law that protects schools, students, and prospective students.
HB 3782 is now Public Act 097-0875 and will go into effect on January 1, 2013. The bill is modeled after Maryland's groundbreaking social media privacy legislation that became the first law in the country to specifically address an employee's digital right to privacy. At least 15 states have introduced social media privacy legislation along with Congress.
Employees and job applicants should still watch what they post online because anyone who has access to their posts may be able to re-post them or print them out for others to see. While an Illinois employer may not be able to require that an employee or job applicant provide access to one's password protected Facebook page or content as a condition for employment, one of your Facebook Friends can still freely contact your employer and send them your password protected digital content.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, July 24, 2012
Sex crime victim will not be jailed for tweeting the names of her attackers
On July 23, 2012, I wrote about Savannah Dietrich who tweeted the names of her alleged juvenile attackers after they were reportedly offered a lenient plea bargain. It appears that the media attention surrounding Dietrich's case may have led her attackers to drop their motion to charge her with contempt for outing them.
Dietrich alleged she was sexually assaulted in August 2011 while passed out at a party. Two juveniles were charged with felony first-degree sexual abuse and misdemeanor voyeurism and they pleaded guilty to those charges this past June. Dietrich was upset with the plea bargain so she decided to speak out.
The matter was handled in juvenile court and under Kentucky law the proceedings are closed to protect the confidentiality of those involved. Even if Dietrich's attackers did not drop their motion, I believe her lawyer may have been successful in blocking it because her attackers took photos of the incident and circulated them on the Internet.
The attorneys for Dietrich's attackers made a strategic error by filing the contempt motion because of the Streisand Effect. The contempt motion had the exact opposite effect of what was intended in that her attackers wanted their names kept out of the media. However, the filing of the motion brought more publicity to the case due to social media.
Therefore, in the Social Media Age lawyers must be able to understand how digital technology may affect their cases because a wrong move may harm their clients' interests and destroy their case.
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.
Dietrich alleged she was sexually assaulted in August 2011 while passed out at a party. Two juveniles were charged with felony first-degree sexual abuse and misdemeanor voyeurism and they pleaded guilty to those charges this past June. Dietrich was upset with the plea bargain so she decided to speak out.
The matter was handled in juvenile court and under Kentucky law the proceedings are closed to protect the confidentiality of those involved. Even if Dietrich's attackers did not drop their motion, I believe her lawyer may have been successful in blocking it because her attackers took photos of the incident and circulated them on the Internet.
The attorneys for Dietrich's attackers made a strategic error by filing the contempt motion because of the Streisand Effect. The contempt motion had the exact opposite effect of what was intended in that her attackers wanted their names kept out of the media. However, the filing of the motion brought more publicity to the case due to social media.
Therefore, in the Social Media Age lawyers must be able to understand how digital technology may affect their cases because a wrong move may harm their clients' interests and destroy their case.
To learn more about these issues you may contact me at www.shearlaw.com.
Monday, July 23, 2012
NCAA Penn State sanctions prove schools should not social media monitor their students or employees
The Penn State Jerry Sandusky child sex abuse scandal is the worst scandal in the history of college athletics and has now drawn unprecedented NCAA sanctions. The sanctions were handed down by the NCAA because the evidence from the Freeh Report along with the criminal trial of former coach Jerry Sandusky indicated that "Penn State's leadership failed to value and uphold institutional integrity, breaching both the NCAA Constitution and Division I rules."
On November 10, 2011, I stated that, "between legal fees, settlements, judgments, possible fines etc... it is possible that this scandal may cost Penn State $100 million dollars or more. This does not factor in the damage to its reputation along with the loss of future economic opportunities." It appears that this scandal may end up costing Penn State closer to $150-$200 million dollars now that the NCAA has taken unprecedented action.
Digital evidence from more than ten years ago appears to have persuaded former FBI Director Louis Freeh that there was a systematic cover up regarding the Sandusky matter. The emails that the Freeh Report uncovered may have been the determining factor that led to the NCAA's sanctions against Penn State.
According to the NCAA's website, Penn State's sanctions include:
-$60 million fine. The NCAA imposes a $60 million fine, equivalent to the approximate average of one year's gross revenues from the Penn State football program, to be paid over a five-year period beginning in 2012 into an endowment for programs preventing child sexual abuse and/or assisting the victims of child sexual abuse.
-Four-year postseason ban. The NCAA imposes a four-year postseason ban on participation in postseason play in the sport of football, beginning with the 2012-2013 academic year and expiring at the conclusion of the 2015-2016 academic year.
-Four-year reduction of grants-in-aid. For a period of four years commencing with the 2013-2014 academic year and expiring at the conclusion of the 2016-2017 academic year.
-Five years of probation. The NCAA imposes this period of probation, which will include the appointment of an on-campus, independent Integrity Monitor and periodic reporting as detailed in the Corrective Component of this Consent Decree.
-Vacation of wins since 1998. The NCAA vacates all wins of the Penn State football team from 1998 to 2011.
-Waiver of transfer rules and grant-in-aid retention. Any entering or returning football student-athlete will be allowed to immediately transfer and will be eligible to immediately compete at the transfer institution, provided he is otherwise eligible.
-Individual penalties to be determined. The NCAA reserves the right to initiate a formal investigatory and disciplinary process and impose sanctions on individuals after the conclusion of any criminal proceedings related to any individual involved.
The Big Ten has also weighed in on the matter. According to The Patriot-News, Penn State will not be eligible to receive at least $13 million dollars in bowl revenue over the next four years. Therefore, Penn State will lose at least $73 million dollars in revenues related to the Sandusky matter before legal fees and expenses, civil settlements, judgements, etc... are factored into the entire cost of the situation.
This matter should be a warning to every NCAA institution. If a school employs a social media monitoring company to track its students and/or employees and it learns about a Tweet or post that may indicate illegal activity and the university does not immediately report it to the proper legal authorities it may be fined tens of millions of dollars by the NCAA.
The bottom line is that schools that listen to self-described experts/leaders/consultants, etc... who create fancy marketing materials and digital presentations that provide the false impression that they understand NCAA compliance, public policy, student education issues, and the law, may be in for a huge shock in the near future.
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 November 10, 2011, I stated that, "between legal fees, settlements, judgments, possible fines etc... it is possible that this scandal may cost Penn State $100 million dollars or more. This does not factor in the damage to its reputation along with the loss of future economic opportunities." It appears that this scandal may end up costing Penn State closer to $150-$200 million dollars now that the NCAA has taken unprecedented action.
Digital evidence from more than ten years ago appears to have persuaded former FBI Director Louis Freeh that there was a systematic cover up regarding the Sandusky matter. The emails that the Freeh Report uncovered may have been the determining factor that led to the NCAA's sanctions against Penn State.
According to the NCAA's website, Penn State's sanctions include:
-$60 million fine. The NCAA imposes a $60 million fine, equivalent to the approximate average of one year's gross revenues from the Penn State football program, to be paid over a five-year period beginning in 2012 into an endowment for programs preventing child sexual abuse and/or assisting the victims of child sexual abuse.
-Four-year postseason ban. The NCAA imposes a four-year postseason ban on participation in postseason play in the sport of football, beginning with the 2012-2013 academic year and expiring at the conclusion of the 2015-2016 academic year.
-Four-year reduction of grants-in-aid. For a period of four years commencing with the 2013-2014 academic year and expiring at the conclusion of the 2016-2017 academic year.
-Five years of probation. The NCAA imposes this period of probation, which will include the appointment of an on-campus, independent Integrity Monitor and periodic reporting as detailed in the Corrective Component of this Consent Decree.
-Vacation of wins since 1998. The NCAA vacates all wins of the Penn State football team from 1998 to 2011.
-Waiver of transfer rules and grant-in-aid retention. Any entering or returning football student-athlete will be allowed to immediately transfer and will be eligible to immediately compete at the transfer institution, provided he is otherwise eligible.
-Individual penalties to be determined. The NCAA reserves the right to initiate a formal investigatory and disciplinary process and impose sanctions on individuals after the conclusion of any criminal proceedings related to any individual involved.
The Big Ten has also weighed in on the matter. According to The Patriot-News, Penn State will not be eligible to receive at least $13 million dollars in bowl revenue over the next four years. Therefore, Penn State will lose at least $73 million dollars in revenues related to the Sandusky matter before legal fees and expenses, civil settlements, judgements, etc... are factored into the entire cost of the situation.
This matter should be a warning to every NCAA institution. If a school employs a social media monitoring company to track its students and/or employees and it learns about a Tweet or post that may indicate illegal activity and the university does not immediately report it to the proper legal authorities it may be fined tens of millions of dollars by the NCAA.
The bottom line is that schools that listen to self-described experts/leaders/consultants, etc... who create fancy marketing materials and digital presentations that provide the false impression that they understand NCAA compliance, public policy, student education issues, and the law, may be in for a huge shock in the near future.
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.
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