Category Archives: Identity

7 Legal Issues For Pokemon Go: Gotta Read Them All!

pogologoPokemon Go has taken the planet by storm.  In its firstweek it surpassed Twitter for daily active users, it became the top grossing US iPhone app in just 13 hours (despite being a free to play game with optional purchases), and mobile users are spending more time on Pokemon Go than on Facebook.  Pokemon Go has become the most popular Android app for daily users, surpassing the previous leaders by nearly 300%.  And it did that in a span of days.

Not only have you likely heard of Pokemon Go, you’re also statistically likely to have played it if you have a mobile phone.  If you haven’t played there are plenty of guides out there (here’s a video I thought was a good intro) or you can just go to any public place where you see people looking at their phones and ask them.

Given the meteoric rise of Pokemon Go, it is only a matter of time before the game crosses over into doing promotions and marketing activity.  There are already reports that the game includes code to run a test promotion with McDonald’s in at least one Asian country.  With this many people and brands interested in the hot new game (and eventual platform), my friend and fellow social media lawyer Jim Dudukovich and I wanted to present the seven legal issues you should know around the game for now.  This isn’t specific legal advice, just us thinking about the intersection of new technology and the law.  And an excuse to play.

1. Pokemon Go isn’t a platform…yet

While Pokemon Go provides an intriguing mix of real world and virtual world entertainment, the interaction between players is currently very limited.  Players do not see other players while wandering their virtual map overlays on real world maps.  The only interaction with other players is in lures dropped by players and battling/training at Pokemon Gyms.

The

The swirling purple flowers are caused by lures dropped by players–you can see the lures dropped by other players but cannot see the players themselves.

This is all certain to change in the future.  The Pokemon Go terms discuss the ability to trade items with other players even though that functionality does not yet exist.  Trading items with other players will possibly come with the ability to communicate with them as well, or perhaps there will be the ability to chat with other members of your team (one of three alliances you join upon reaching level 5 in the game).

While Pokemon Go has currently inspired people to get together and communicate, it is neither required for the game nor supported by it yet.  So the game is not a social media platform…yet.  But given the rise of players and pop culture awareness, it is almost a certainty that the game will either evolve to become a platform or players will start to congregate around another platform in order to communicate.  This places the app more in the realm of just a game for now, but as it expands functionality and brands start to get involved there will be a number of common social media platform legal issues that emerge.  So stay tuned.  And level up in the meantime.

2. Sponsored content is coming

Where there’s a game, there’s an opportunity for brands to get involved (with varying levels of legality).  The model for Pokemon Go has yet to mature (or at least to be announced publicly), but the ways brands can get involved will likely include not only some “conventional” methods, but also some integrations that are possible only with augmented reality.

Going forward, we are likely to see “official” partnerships whereby businesses can become sponsored locations or some other formally identified type of destination with yet-to-be-determined perks (and costs).  In order to distinguish the haves from the have-nots, the benefits of paying for participation will need to really break through the clutter of the free-riders in order for businesses to invest (see #3 below).  One would assume that part of that bundle of rights would be co-promotional rights, whereby those partners can produce advertising materials featuring elements that only official partners can use.

And with augmented reality comes the ability for brands to buy virtual advertising space; clearly Niantic – should it opt to pursue this revenue stream – will need to be thoughtful so as not to chase away users by overly commercializing the user experience.  When users start having to walk around a virtual billboard in order to capture a Jigglypuff, they might begin to revolt.

3. But businesses are already cashing in

As things currently stand, some businesses are near Pokestops, which attract players to their locations to load up on Pokeballs and other virtual supplies and (hopefully) lead those players to buy something from the brick-and-mortar business; at the very least it breeds familiarity and exposure.  We’ve also seen businesses buying and dropping lures to attract players, as well as putting up social posts that play off of the game’s name, notoriety, characters, and imagery, including using #PokemonGo.  There are even online articles telling business how to take advantage of this claim, like this rather creative one from Shift Communications.

Some examples:

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

This Brookstone in the Houston Galleria invites players in with a discount.

This Brookstone in the Houston Galleria invites players in with a discount.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

Space Cadets Collection in Oak Ridge North, Texas alternates which team will receive a discount that day.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go, although this has not been verified.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

From a legal standpoint this raises some interesting questions.  For instance, if businesses are leveraging the game to attract consumers, would Niantic not have a potential claim for false association/false endorsement?  One would think so, but since it’s already been over a week and we haven’t seen any claims, uhm, wait – how long until some form of laches or abandonment defense would attach?  But seriously – we don’t know if Niantic has any inclination to attempt to aggressively enforce its trademark rights – it’s making plenty of money from in-app purchases that are attributable to these uses and will likely make plenty more once it launches official branding opportunities.  In light of that, so long as the participation by unaffiliated businesses doesn’t interfere with Niantic’s business opportunities to sell official partnerships, and so long as those unofficial users don’t hold themselves out as official sponsors or otherwise engage in behavior that could dilute or undermine Niantic’s trademark rights, we probably won’t see widespread aggressive policing.

4. Does Pokemon Go create attractive nuisances or encourage trespass?

Pokemon Go is not the first geolocation game to exist, but it’s the first to breakout in such a significant way.  Having millions of people, many of them under the age of 18, wander around trying to collect virtual property brings some real property issues up in unique ways.  These next three topics are just a few of those interesting overlaps between the real and virtual world.

Adults know not to trespass on private property (or the law infers they do) but children are typically given a free pass when it comes to attractive nuisance law.  This is the body of law that covers situations when a child illegally enters private property and is injured while on that property.  While originally laws in this space required the nuisance itself (piles of lumber, swimming pools, trampolines) to cause the injury, the law has also broadened the landowner’s culpability to include conditions that the owner could foresee would cause injury.  Imagine a very visible giant pile of lumber that a child would want to climb and a ravine covered by grass on the way there–that’s covered.

The Pokemon Go terms do imagine this potential risk area.  There’s an entire Safe Play section which discusses avoiding physical harm while playing and obeying all laws including trespassing.  That doesn’t mean much to the 13 year old who won’t read these terms (and 99% of all other players), but it provides the developer with some protection around players being injured.  The terms do not shield property owners, who now may face a slightly greater risk of some injury on their property by players looking for Pokemon.  The game is designed to be played by walking around and the game informs players when Pokemon are nearby but not where they are–the only way to track them down is to try walking in different directions and seeing if they are closer to the Pokemon as indicated by the number of footprints near the Pokemon’s picture or outline.

Since Pokemon are placed randomly, it is possible the game could inadvertently provide clues that lead children onto dangerous property or near a dangerous condition.  These clues are left vague on purpose, to make it more of an exploration game, but that also can lead children onto private or dangerous property.  When the Pokemon finally appears you can click on its location in the map, but getting it to appear can be random.  The game also gives you visual clues of where Pokemon might be with rustling leaves–players chasing those leaves may not realize where they are going.

The game itself doesn’t intend this risky behavior, nor can it be prevented currently.  It’s also debatable if a landowner would be liable for a harmful condition when they did not create the attraction that drew a child onto the property in the first place.  If a landowner is already in a densely populated area and is concerned about children being injured, they probably have already taken action (on the condition itself, preventing access, posting signs).  If they are in a remote area it’s hard to imagine local Pokemon Go players entering their property as opposed to visiting areas of attraction (PokeStops which provide virtual items to players).  But landowners in the space between may want to be aware of this risk and if they were debating taking action in the past, perhaps now is a time to do so.

While it may be difficult to pin responsibility on Pokemon Go for an attractive nuisance or trespass, it certainly creates an environment where those actions may be more likely to take place.  So both players and landowners may want to consider the risks when playing.

5. Pokemon Go and the idea of appropriate play

Outside of the physical risks that players may be subjected to while hunting Pokemon, there is also a growing concern of whether playing the game is appropriate in certain locations.  Within the first week of the game’s launch a story circulated about the Holocaust Museum in Washington, DC asking people not to play the game in the museum.  Arlington National Cemetery also asked players to refrain from using the site as a playable location.  The sites said they would reach out to the game creator to see about excluding the sites from the game but so far there does not appear to be an easy way for property owners to exclude their land from the game.

The idea of whether a location is appropriate or not is not limited to large national sites, though.  Because Pokemon Go is based on work done for a previous geolocation game, Ingress, much of the previous game’s data are used for this new iteration.  And because Ingress was based on a storyline involving spiritual energy, many of the featured locations in the game can have a spiritual element such as churches or monuments.  Or take, for example, this PokeStop in Austin, Texas:

faniapokestop

This happens to be the headstone for my wife’s great-grandmother Fania Kruger–a woman who immigrated to Texas when she was 15 and later became a well-known poet.  Is her headstone being a PokeStop a good or bad thing?  Is it a celebration of her life to have players intentionally seek out her final resting place and perhaps learn a bit of who she was or learn her name?  Or is it a desecration of a place of remembrance for her and the other families whose relatives are nearby?  While this may not present a direct legal issue, the reaction to a real world location with emotional interest becoming a game location can cause strong reactions.  And those reactions may turn into legal issues as cemeteries, museums, or other public spaces must now develop a position on Pokemon.

6. Are Pokemon Go players loitering?

Laws vary on the subject, but generally speaking most jurisdictions have laws that allow authorities to prevent people from hanging around with no apparent purpose.  Typically these laws were used to prevent gang activity or break up groups that might lead to trouble.  With small or large groups suddenly appearing in public places, wandering around while staring at their phones, authorities might be curious or concerned.  Within the first few days of the game being launched, a story appeared on Imgur of a white man searching for Pokemon in a park late at night only to encounter two fellow players, black men, and while the three of them talked the police were called about a suspected drug deal.  The story ended happily enough, with the policeman downloading the game and playing, but under scrutiny the original poster deleted the story.

It is true that Pokemon Go is drawing out populations that were previously playing games indoors.  While many people have long bemoaned the lack of America’s youth playing outdoors, society is also shocked and confused when exactly that happens.  While businesses seem to be getting in on the action, some even advertising if their stores are PokeStops or Pokemon Gyms (areas where Pokemon are trained and players battle for control of the location), some other locations may be less open to random strangers driving up or wandering around.  And authorities may be suspicious of large groups gathering at night.  Is it a gang fight or a Pokemon Go meet-up?

The actual definition of loitering may differ by jurisdiction, but it is generally defined as remaining in one place without apparent purpose.  Whether playing Pokemon Go provides that apparent purpose or not is debatable and may be up to the discretion of police officers depending on time and location.  Shopping malls or other private property that have posted No Loitering signs are possible more sensitive to this kind of activity, so players may want to consider the area before conducting extensive searches or meeting up with other players.

7. Are Pokemon Go players targets for criminals?

In the wake of the game’s popularity came another rash of articles suggesting that players were at risk of being targeted by criminals.  There was a report in St Louis of some teens who robbed players, possibly drawing them to their location by dropping a lure (virtual items which other players can see and increase your chances of finding Pokemon).  It’s hard to imagine this is an actual spike in crime though–or if so it is by some of the worst criminals imaginable.  Targeting Pokemon Go players seems far less lucrative than, say, staking out an ATM where people withdraw money.  On the flip side, using a remote PokeStop may yield less rewards but have less chance of getting caught.  Unless you’re in St Louis.

There’s also one story that made the rounds of a player who was stabbed while collecting Pokemon but elected not to go to the hospital so he could keep playing.  You can read the full account here but I thought the more interesting (and usually ignored) part of the story was how he was out at 1 am, saw another man wandering around, and immediately asked him if he was playing Pokemon.  This apparently triggered the man to attack the player with a knife.  So maybe the lesson here is to not wander around after midnight playing Pokemon, or not to assume some other person stumbling around in the dark is doing the same.  It may also be a lesson to the developers that hopefully they won’t create specific Pokemon that can only be found in urban centers, particularly near bars, in early morning hours.

More to come

Pokemon Go has certainly taken the country and world by storm but these are the very early days of the game.  Will it fizzle in the upcoming months, or will it continue to draw a healthy crowd and new functionality as time goes on?  We’ll keep our eyes peeled for any nearby rare Pokemon new legal issues around this game and let you know.

 

 

 

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Filed under Consumer Protection, Copyright, Fair Use, Identity, Kids, Laws, Pokemon Go, Privacy, Social Gaming, Social Platforms, Social Tracking, Technology, Terms and Conditions

So You Want To See A Social Media Law Final? (2016 Edition)

Hamilton-Poster

Cower before my mad shop skillz.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law.  Having just submitted my grades today, I’m now pleased to share with you this year’s final exam.  I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months.  Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

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Filed under Celebrities, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Email, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Google, Identity, Informal Tone, Instagram, Laws, Personal Live Streaming, Privacy, Social Content, Social Marketing, Social Media and the Law, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Terms and Conditions, Trademark, Twitter

The Sky Is Not Falling: Your Guide To The New Facebook Terms

The internet has a mild explosion every time Facebook announces a change to its terms of service.  The shockwaves are just now creeping out with questionable articles and scary exposes bemoaning the upcoming changes and a slew of people posting those bogus copyright or privacy notices because they think those matter.  Bogus notices which I blogged about two years ago–a fun little post called You Owe Me $2 For Reading This Blog Post Title (And The Three Signs Of A Social Hoax)–but are still going around.

But what there hasn’t been too much of is an actual comparison of the differences with the old Facebook terms and the new ones.  Because that would be rational and probably not get many clicks.  All the current articles seem to take for granted that the current/old Facebook terms are fine–but change is SCARY!

So here, in the closest way I can be not rational and get lots of clicks, even though it doesn’t matter since I don’t put ads on this site  (wordpress may because I have the free service), is my fear-laden analysis of the actual section-by-section changes to the Facebook terms.  If you want to check yourself here’s a link to the old (or current) terms and the new terms that go into effect in January 2015.  Otherwise, just trust in me and BE AFRAID!!!

1. Privacy

Facebook doesn’t have a Privacy Policy–did you know that?  No, that isn’t a change with the new terms–they haven’t had one in years.  Instead they’ve had a Data Use Policy.  Which is actually a better name for what the policy covers anyway.  But now the policy will be called the Data Policy.  The word “Use” has been obliterated, it’s a whole new world of darkness and evil!

Oh, that’s the only change to the Privacy section.  Try to quell your horror and move on to section 2.

2. Sharing Your Content and Information

If that one change in the Privacy section didn’t terrify you then surely the two, yes TWO changes to the content sharing section will make you crawl under the bed and Instagram scary flashlight pictures all night.

Change 1: Data Use Policy is now Data Policy in the third item.

Change 2: the word “them” has been changed to “your feedback or suggestions” in the fifth item. Which is what “them” referred to anyway only now it’s clearer.

Steal your heart and move on to the next block.

3. Safety

The ninth item (“You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (‘promotion’) on Facebook.”) has been removed.  It’s like they don’t even want us to be safe anymore!  Or it’s like they moved it to another page and link it later.  Either way: EVIL!

4. Registration and Account Security

Registering is when Facebook first sinks its evil tentacles into your personal information and account security is how you keep your own account out of the hands of other people.  So it should surprise nobody that Facebook took this entire section and did nothing at all with it whatsoever.  My goodness, does their evilness know no boundaries?  They’re like a Sbarro restaurant to your lower intestine–pure, fast-moving evil!

5. Protecting Other People’s Rights

The old version mentioned how you couldn’t use Facebook trademarks except as provided in a Brand Use Guideline and it gave examples of what those trademarks were.  Now it doesn’t give examples of Facebook marks.  AT ALL.  Except it makes Trademarks a defined term and gives the examples near the bottom of the document.  THE BOTTOM.  Dracula himself couldn’t be scarier if he was in High School Musical 6: No More Mirrors!

6. Mobile and Other Devices

We all know how important mobile devices are to Facebook users and the company.  Knowing that, can you guess what they did with this section?  NOTHING!  It’s like the moment when the full moon comes out and the guy turns into a werewolf.  Except there’s no moon and no werewolf.  Run!

7. Payments

This section used to force you into the draconian and horrible Facebook payment terms–terms so horrific I dare only utter their name and make several hand-wards to keep the demons away.  The new terms say that you will still be subjected to them–unless other terms are listed and then those apply.  And those terms could be…better?  No, they will be worse!  They will demand your unborn baby and require you to listen to Justin Bieber music non-stop for months!  How dare those…other payment providers besides Facebook make other terms available to you when buying things!

8. Special Provisions Applicable to Developers/Operators of Applications and Websites

This section links to special provisions that were totally in the same document before–you didn’t even have to click last time but NOW YOU DO!  Oh, and they combined this with providers of social plug-ins as well, just to MAKE THINGS SIMPLER/EVILER FOR YOU!

9. About Advertisements and Other Commercial Content Served or Enhanced by Facebook

Oh yeah, here’s the beefy stuff.  Because we all know that Facebook wants all your data to sell to people so that you’ll buy Snuggies and knock-off Legos and flavor injection kits that totally DO NOT INJECT FLAVOR NO MATTER HOW MUCH TERIYAKI SAUCE YOU USE!  (ahem)

Hmm.  They didn’t change anything here.  Or maybe they did–IN INVISIBLE INK!!!  (insert evil laugh)

10. Special Provisions Applicable to Advertisers

Do you put ads on Facebook, you evil bastard?  Then you should know these terms have moved to their own document!  And that document is totally possessed by an evil doll who wants to steal half your socks.  Not all your socks, just one of each pair.  I hate those dolls.

Otherwise, no changes.

11. Special Provisions Applicable to Pages

No changes here…

12. Special Provisions Applicable to Software

No changes here…

13. Amendments

BAM!  Oh, just when you were lulled into a false sense of security, Facebook done Amendment changed you, son!  And do you know what they did?  Do you know what they did?  Why, they clarified when they may make changes to the terms but still said they’ll give you notice!  That’s like McRib evil right there.  They even took away the seven day requirement for posting changes to the terms meaning they could totally post term changes MORE THAN SEVEN DAYS AHEAD OF TIME!  Not like they’ll ever do that though.  I mean, it’s not like we’re analyzing term changes four weeks before they go into effect.

Wait, we are?  THAT’S HORRIFYING!  This is like the BuzzFeed list of 13 Kittens Who Are So Scaredy-Cat They Cannot Even Handle Right Now!

14. Termination

This is the section that says what part of the terms would still apply even if you don’t use Facebook anymore.  And they made LESS terms still apply.  If that isn’t the legal equivalent of the Alien chest burster, I don’t know what is…shudder.

15. Disputes

But what if you have a disagreement with Facebook?  This is where they totally take advantage of you, right?  You bet they do.  And they do that by changing a typo (it said “or” when they meant to say “of”) and they also changed three instances where the limitation only said HIS or HIM and changed it to HIS OR HER or HIM OR HER.  Wait, so these terms apply to women now too?  What is this, Facebook, the women’s suffrage movement of the 1910’s?  Because time travel is scary or something.

16. Special Provisions Applicable to Users Outside the United States

People outside the US don’t get to use Facebook anymore.  Oh wait, that was an early draft.  NO CHANGES?!?!  Why, the implications of this are staggering.  Has anyone told Kim Kardashian yet?  She may need to delete her Facebook page in protest!

17. Definitions

There are so many changes here I can’t even begin to list them.  Actually, there are four and they’re boring.  Kinda like the Blob.  Maybe a long time ago that was scary but now I’m just eating popcorn and waiting for The Fly to start.

18. Other

Obviously Facebook has saved the best for last.  Other is the giant catch-all, the monster cornucopia of platform terms and conditions that lets the giant corporation eat your toes and drain your bank account.  So it should come as no surprise that Facebook changed NOTHING  here.  Because that’s how evil they are: pure evil.  Like pure maple syrup if maple syrup was evil.  Which is crazy talk because maple syrup is pure goodness.

 

And…that’s it.  My goodness, I’m surprised we made it through all of that.  I believe the only rational response is to post a status update about the Burner convention and then delete our Facebook accounts.  Instead let’s go over to WhatsApp.  I hear the guys that run that app are super cool.

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Filed under Authentication, BuzzFeed, Celebrities, Commercial Activity, CopyFUD, Copyright, Europe, Facebook, Identity, Instagram, Laws, Privacy, Social Content, Social Platforms, Social Tracking, Terms and Conditions

My Awesome Announcement

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career.  Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books.  (Go with me, people.)  For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic.  They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas.  Nutshells get right to the point and provide essential information on the overall legal topic.  I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section.  Can you spot it?

Can you spot what's missing?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic.  My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom.  His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now.  There isn’t a wealth of case law on social media issues, but there are certainly cases out there.  In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t.  Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me.  He’s just a more talented and better looking version of me who can also sing and dance and has a better accent.  The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest.  Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts.  When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering.  I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value.  To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way.  An even bigger thanks to my family for putting up with my little side projects.

Now, if you’ll excuse me, I’ve got some writing to do.

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Social Media Law Final (You Know You’re Curious)

Because triumph.

While I enjoy many aspects of being a social media lawyer one of my absolute favorites is teaching a class I developed at the University of Texas School of Law.  This spring I taught the class for a second time to an even larger class and had many entertaining classes and conversations throughout the year.  We even had to deal with actual ice cancellations and fake ice cancellations and held one class virtually over Adobe Connect.  All in all, a fun semester.

Since my class covers a variety of legal subjects impacted by social media, the final also covers a number of different topics.  And just like last year when I posted the first law school exam I gave, below is an embed of this year’s final.  Now you can play along and imagine what you would respond if you had to take this final.  I omitted the first page which was just directions–just know it was open book and students had three hours to take the exam.  Each question was weighed equally.

Oh, and there’s a social media easter egg hidden in the final.  Let me know if you find it.

Update: Jason Ross found the easter egg first, so congrats to him!  Yes, I rickrolled my students, they just didn’t realize it.  Read the first letter of each line of the final.

 

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My Keynote: Seven Stories of Social Media Legal Risk

This.

You always remember your first keynote.  So I’ve been told.  And so far, that’s true.  I’ve spoken at conferences, chaired conferences, led panels and participated on them.  I’ve taught one-off classes and an ongoing Law and Social Media class at the University of Texas School of Law.  But this past January was a big milestone for me as I was invited to deliver the keynote address at the Charleston Law Review’s annual symposium.  The year before, their keynote speaker was retired Supreme Court Justice Sandra Day O’Connor.  I figured she was an acceptable opening act for me.

It actually took me a while to decide what to speak about–there are so many great subjects within social media and the law (hence this blog).  So I cheated a bit and instead of picking one topic I picked seven.  Actually a bit more than seven but I organized these subjects around seven stories of social media legal risk.

The symposium was fantastic.  A great venue in the Charleston Music Hall (I’ve never spoken in a room with a balcony except my own living room and that’s mostly to tell my boys to come downstairs).  And a great schedule with four other panels dealing with social media and the law, but not marketing–typically the majority of social media law talk is about marketing.  It was refreshing to see a symposium with panels on employment issues, your digital afterlife (what happens to your accounts after you die), privacy, and legal ethics.  Fantastic speakers, materials, and very well organized.  Total package.

Charleston Law Review ended up posting the video of my keynote.  I’ve embedded the YouTube video of my keynote below in case you have 55 minutes or so to kill and want to fill it with some fun social media stories. And below that is an embed of my slides because I use slides a lot but you can’t see them in the video. So you’ll just have to click along yourself to see all the fun.

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3 Bad Social Media Policy Criticisms

“And sit up straight when you’re composing a social media policy!”

While social media policies can certainly go too far so too can criticism of such policies.  I found that to be true with a recent Above The Law blog post Biglaw Firm Holds Associates To Strict Social Media Policy.  In a full hat tip, the post was sent to me by Scott Malouf (@ScottMalouf) who also recently interviewed me for an article about social media legal issues.   The interview went so long (because us lawyers don’t know how to shut up–case in point, look at the length of this post!) that it was divided into four parts so here’s a link to part 1 if you’re interested.

The blog post is highly critical of the social media policy put out by Milbank, Tweed, Hadley & McCoy, a large firm with hundreds of attorneys and offices around the world.   Three criticisms of the firm’s social media policy are presented in the blog post, all of which I think are going a bit too far.  I’m not sure if the tenuous arguments are just the blogger trying to be sensational or an honest critique.  In case of the latter I thought it was right to call out the attack for being short sighted.  And in doing so it may provide some guidance to others still working on their own social media policies.

Here is the first policy section criticized:

The Firm is aware that its lawyers and administrative employees may wish to participate in or contribute content to social networking websites, weblogs, internet diaries, tweets, wikis or other publicly accessible Internet forums (“Social Media Sites”) for both business and personal use. Unfortunately, Social Media Sites may create opportunities for personal and professional embarrassment, breaches of confidentiality, real or perceived violations of privacy and identity theft, and the risk of publishing views or information that may be inconsistent with the interests of one or more Firm clients, among other hazards.

The blogger does point out that much of this is true and it’s good to signal these concerns to the attorneys.  But then the post goes on to read

That said, the language “may be inconsistent with the interests of one or more Firm clients” is a little troubling. The policy correctly notes that even “the personal activities of lawyers and administrative employees on Social Media Sites may be misperceived as Firm-authorized,” but how far can Milbank go in labeling private statements as candidates for misperception? Can Milbank hold it against an idealistic lawyer bad-mouthing offshore drilling and promoting new legislation/regulation when the firm represents large energy concerns? One would hope not, but the policy reads like that’s a real possibility.

The notion that an individual might bring about some negative consequences for their employer shouldn’t be a surprise to a large blog like ATL.  There are countless examples over the past several years.  Although this blog post came out on December 9 so it can’t be faulted for not knowing the most recent example of now former public relations executive Justine Sacco and her racist AIDS tweet.  Social media content can go viral in minutes and even someone with less than 500 followers (as Ms Sacco had) can end up on the front pages of news sites in a few hours.

Milbank’s point, which the blog ignores, is that it isn’t the firm that will try and connect an individual post to a corporate position.  It’s the blogosphere and social media community that will do so.  When Ms Sacco made her tweet nobody thought that her employer believed the same thing, but there was an immediate request for a statement and the obvious need to distance themselves from such a tweet.  This is a heightened concern for an employee of a media company since their conduct on social media is plausibly connected to their work.  But the same is also true for an attorney who handles sensitive information and is supposed to be a trusted advisor.  Like it or not, a lawyer who behaves badly will call into question the firm that trusts the lawyer.  Here’s just one example of an attorney behaving badly that ended up getting his firm fired.   There are many more.

We have seen a constant blurring of the line between personal and professional life.  Despite the wealth of jokes about lawyers, attorneys are held to a higher standard.  Lawyers know this and law firms know it too.  Calling it out specifically to lawyers and telling them that their actions may create conflict for a client or firm isn’t wrong.

The second section of the policy criticized by the blog reads

Although the Firm strongly discourages any lawyer or administrative employee from disclosing his or her association with the Firm when participating in discussions or asserting opinions on a Social Media Site, if a lawyer or administrative employee discloses his or her association with the Firm in such circumstances, a disclaimer along the following lines must be included: “This material/opinion is my own and does not purport to represent the positions, strategies or opinions of my employer.”

That’s not a horrible recommendation.  The firm is encouraging attorneys to just leave the firm out of any discussions but if it comes up to include a standard disclaimer.  Although it’d be nicer to have the disclaimer be left up to the attorney and perhaps made a bit more organic, it’s not hard to see why such a large firm would just make standard text.  The blog post goes out of its way to critique this part of the policy:

Most Facebook profiles identify the person’s current employer. In that case, wouldn’t a person be “disclosing his or her association with the Firm when participating in discussions or asserting opinions” in every conversation they have on Facebook? I’m guessing this disclaimer isn’t added to every post where a Milbank associate posts about the One Direction concert they went to last night. Even though that’s horrifically embarrassing for the firm and everyone else connected to the lawyer.

First, pointing out that Facebook profiles mention the person’s employer ignores the part of the policy where the firm suggests attorneys not do that.  But even if a profile did include that information, the firm  isn’t necessarily part of the conversation.    This is why I always encourage people to disclose their employer or employment relationship if they are talking about their work.  I always hear the standard “But it’s in my profile!” or “All my friends know for whom I work!” (okay, most of them don’t say whom or even talk like that).  But the point isn’t about your friends or what they know, it’s how a post can be shared or seen by others that don’t know you or your employer.  That’s the time you want the disclosure to be built-in.

Here, the firm wants the disclosure to be built-in if you’re going to talk about a matter relating to an attorney’s job.  Which could only be talking about a client or a legal matter and you can see why they would want the disclaimer.  Trying to stretch this to a post about One Direction is overreaching.  Or, in the words of One Direction: That’s what makes it non-sensical.  (And let’s all forget I tried to make a joke about 1D lyrics, mmkay?)

The final part of the policy criticized by the blog reads:

The Firm reserves the right to monitor the activities of lawyers and administrative employees on Social Media Sites and may at any time request or require the removal of any posting or content on a Social Media Site. If conduct is in violation of Firm policies and/or is seen as compromising the interests of the Firm, the Firm may take appropriate disciplinary action.

While I think this is a bit wordy and potentially unnecessary (reserving the right to monitor?) it captures what we can imagine most social media savvy companies do already.  Perhaps they only wait for a crisis to erupt or they have a third party monitor conversations or they engage in more active monitoring on their network.  But not being aware of what your employees are saying in light of heightened risks over what your employees might say isn’t just risky but potentially really dumb.  And big law firms, successful ones anyway, aren’t dumb.  But here’s what the blogger had to say about this section:

That’s probably just meant to cover Milbank’s bases, and not a declaration that Milbank has NSA screeners checking out every Pinterest post that some Tax associate just put up. Still, welcome to the Panopticon of One Chase Manhattan Plaza! Your employer may be checking up on your private life right now and preparing “disciplinary action” for posts the firm — and the firm alone — decides cast the firm in a negative light. Or maybe they aren’t checking up. You’ll never know!

This is a fairly weak criticism because at this point you should expect a social media aware company to be monitoring social media.  That’s part of the point of being on social media.  A small part of that may be monitoring your employee’s posts, but more likely than not those posts simply fall into the bucket of monitoring the conversations around your brand.  But nobody should be surprised that a company might see an employee’s post–whether they looked for it intentionally or not is irrelevant.  That is a far cry from “checking up on your private life” and goes too far in criticizing the policy.

I’m not saying the Milbank social media policy is perfect–no policy is perfect.  But it’s a pretty good one for a law firm.  And the areas in which Above The Law criticizes it are unfair–these are real concerns for any company, let alone a law firm which must hold itself to a higher standard.  That said, there are areas where the policy could be less restrictive or wordy (or just deleted to make it shorter and more memorable), especially when it comes to mentioning other policies or rules (and if they think they need to remind their attorneys that the same rules apply on social media then maybe they need to do more than put out a memo).  I’m all for improving policies but I think taking potshots at a good policy goes too far.

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