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Wikileaks and Facebook: The Two Futures of Social Media

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The Wikileaks controversy has quite a bit to say about the future of social media, and about information culture more generally.  In particular, this controversy tells us that in the future there may be more secrets, rather than fewer ones.

I’m sure that conclusion seems quite counterintuitive: after all, didn’t Julian Assange just rock the diplomatic world with his dump of hundreds of thousands of diplomatic cables?  Doesn’t the easy electronic transfer of documents render this type of thing more likely in the future?  Isn’t this just the beginning of a new age where transparency is the norm?

Well, yes and no.  We are entering a new age of transparency – for you.  Everyone will know more about you, and your secrets, and every detail of your private existence (just check out Gary Shteyngart’s  hilarious Super Sad True Love Story to see this notion taken to its logical and horrific conclusion).  But perversely, the inclination will now be for governments and large commercial institutions to hold real secrets about themselves even more tightly to their chests.  With data security a more pressing issue, fewer people will be permitted to see real confidential information.  More telephone calls and less documentation may become the norm.   The trend towards fewer secrets may render real secrets all the more difficult to know.

Nearly every technological development over the past several years has been devoted to capturing data.  Document management systems and data mining, e-mail archives and browser cookies — all of these things and so many more are devoted to finding and maintaining data.  But if the growth of electronic media has resulted in the dawn of an age where nothing is ever forgotten, it is suddenly becoming apparent that a lot of folks miss that option.  People want to have their mistakes erased, they want to be able to step away from that drunk moment on Twitter.  But they can’t.  Individuals are becoming like flies caught in amber, a series of embarrassing moments frozen in time forever.  Companies and governments, however, can act with a bit more intentionality.  With an understanding of how e-discovery works, and the knowledge that Wikileaks is out there as an option for disgruntled ex-employees, many folks will see an advantage to holding cards closer than ever to their chests, which can make the process of public disclosure far more challenging, and perhaps impossible.

So our two futures may exist in paraellel — one, where everything is known, and another where everything is disclosed but the real secrets are never revealed.


Recent Decisions

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The courts have been busy of late, ruling on a number of important issues to the world of social media, e-commerce and the ‘net more generally:

–A court in Ohio ruled that a fan site could not use the well known Ohio State trademarks and logos (Ohio State University v. Thomas, S.D. Ohio, No. 2:10-cv-753, 8/27/10).  The Court concluded that the site was not a “news” site, and that the use was not a “fair” use.  This case demonstrates, once again, that many of the presumptions of the Internet Age (e.g. you can use some else’s trademark in setting up a brand-focused website) are not actually true.

–The 9th Circuit ruled that when you “buy” software, and the folks who sell it call it a “license,” it may really be a license after all.  The lower court ruling in Vernor v. Autodesk Inc.,9th Cir., No. 2:07-cv-01189-RAJ, 9/10/10 gave hope to many businesses (and individuals) that the software they purchased was, in fact, a purchase, and could be re-sold at will.  But the 9th Circuit took the side of the software companies, and concluded that these transfers were actually licenses, and could thus be construed to restrict resale.  This is important for everyone because it means that software developers may be able to more effectively halt the resale of “used” products.

–Yes, you can apparently use Google to check out potential jurors during voire dire

– Geolocation data is subject to 4th Amendment protections against unreasonable search and seizure, at least according to the 3rd Circuit Court of Appeals.

–And, in case you were wondering, jurors really shouldn’t be using social media tools to announce their verdicts.


Checking In: Location Based Social Media

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With the launch of Facebook Places, news that Facebook is buying location-based check-in service Hot Potato, and the continuing expansion of services like Foursquare and many others, the world of geotagging and location-based loyalty programs is going completely crazy.

But with this dynamic new technology in the public eye nearly every day, the question must be asked: so what?  Is this really as dramatic a change as everyone is predicting?  Are there legal issues which you should consider as you walk this new pathway?

As for the first question, the answer is quite simple: yes.  More and more of your experience on the Internet is likely to be through mobile devices, and specifically through apps.  This means that an opportunity is present for every marketer on the planet: if they know where you are, they can give you things you need.  If you are in their store, they can give you a coupon through your mobile device.  If they know you are near their store, they can come up with something to encourage you to visit.  If you want access to things and experiences, and those things and experiences can find you(as opposed to the more traditional reverse of that) then you may buy things you didn’t even know were available.  You may participate in games that could not have been created without your personal location being relevant to game play.  In other words, if folks can find out where you are, they can know a lot more about what you want, need or might be convinced to do.

So yes, geotagging will not be going away anytime soon.

But should you be concerned? Of course! Are there any developments on the web that do not concern lawyers?

First, let’s take the obvious: if there is a record of where you are at a given time, suddenly that’s evidence.  There are an almost infinite number of claims where the question “where were you on the night of…” is relevant.  Suddenly, there’s an opportunity for proof, or alibis, or just corroboration.  This may, in fact, present a revolution in the world of e-discovery.

Beyond that, the issues are somewhat more fact specific.  Privacy will, obviously, remain a concern.  If you are publicizing where you are (or if someone is doing so without your consent) and you are endangered for some reason as a result (the amusing but disturbing site pleaserobme is a prime example of how this could be used for nefarious purposes).  How is this information being collected, and is it in compliance with your privacy policy (or, even more concerning, COPPA or foreign privacy directives)?  If this is part of a loyalty program, or a coupon/rebate program, do you have your rules set up properly?  Do you even know that you need rules for a loyalty program (most folks don’t realize that they can’t merely copy the frequent flyer programs used by the airlines — they are preempted out of state laws by the FAA)?

Most critically, though, you need to consider whether knowing where your customers are/will be/have been is useful to you, or are you merely jumping on a bandwagon that has no real relevance to your own business model.  In some respects, that remains the biggest risk of anything in social media: getting so blinded by the brilliance of new tools that you loses sight of what is actually important to you and your business.


More electronic discovery on social media networks

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In contrast to the Supreme Court’s ruling last week on the privacy interest in texts (admittedly a narrow holding, but significant nonetheless) the U.S. District Court for the Central District of California recently held that a variety of social media content is not discoverable in a civil suit through a third-party subpoena (Crispin v. Audigier Inc., C.D. Cal., No. 09-9509, 5/26/10). 

In this copyright case, the plaintiffs sought subpoenas from several social networking sites.  The subpoenas sought:

[Defendant's] basic subscriber information, as well as all communications between [defendant] and tattoo artist Bryan Callan, and all communications that referred or related to Audigier, CAI, the Ed Hardy brand, or any of the sublicense defendants.

This is broad, but a fairly standard approach in discovery.  The defendant moved to quash the subpoenas, arguing, among other things:

that they sought electronic communications that third-party Internet Service Providers (“ISPs”) are prohibited from disclosing under the Stored Communications Act.

The magistrate judge assigned to the case initially said that the Stored Communications Act did not apply, but the District Judge reversed, and held that the Stored Communications Act did apply, and thus necessitated further inquiry.  Notably, the court stated that:

Recognizing that all three sites provide private messaging or email services, the court is compelled to apply the voluminous case law cited above that establishes that such services constitute [an electronic communications service].  Moreover, the information the parties gave [the magistrate] establishes that Facebook wall postings and the MySpace comments are not strictly “public” but are accessible only to those users plaintiff selects.”

While the court decided that it didn’t have enough information in its hands to conclude that the subpoenas should be quashed, and sent the motion back for further consideration, the holding is provocative, and once again demonstrates the fluid ways in which social media messaging is viewed by the law. 

In some contexts, social media communication can be no different that a private e-mail.  In others, it can be viewed as a bullhorn to the world.  Worse, the situtation may vary depending on which court hears your case.  Thus, your best approach is to assume that everything you write in an electronic format may be discoverable — perhaps through a subpoena to a third party, perhaps only through discovery directly through you — so think about what you say before you hit enter.

 

 

 

 


Your Facebook Page is Evidence

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In one of the first cases to expressly deal with this issue (there really have been remarkably few) a Federal court in Indiana has looked into “defin[ing] appropriately broad limits — but limits nevertheless — on the discoverability of social communications.”  EEOC v. Simply Storage Management LLC, S.D. Ind., No. 1:09-cv-1223, (5/11/10).  In this case, which dealt with harassment and other employment issues, the Court held that social media postings which reflected the emotional state of the complainant were discoverable and relevant.

The key paragraph:

Although privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose in the litigation, a person’s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery.

However, the Court held that this does not mean that all social media communications are automatically discoverable.  Instead, the Court ruled that only relevant communications were discoverable, with relevancy in a case where state of mind matters to the substance can be fairly broad:

[T]he appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants Zupan and Strahl for the period from April 23, 2007, through the present that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

So keep in mind that your postings are not only evidence of what you say, but may be evidence of your mental state.