Category Archives: Identity

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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Top 10 Social Media Legal Concerns For 2014 (Plus A Bonus!)

2014 legal risks include the very real possibility that you drop a crystal ball on your foot. This will hurt.

I’ve been privileged enough to be connected with a variety of brilliant, articulate social media attorneys around the country.  Recently one of them asked the group for their top social media legal concerns (not necessarily those of their respective employers) and in great blogging tradition I thought “I can totally steal that and make a blog post out of it!”  But, being all lawyerly, I asked for their permission first.  And then I turned it into a list because the moment you put a number on something the lizard part of your brain takes control of your clicking finger and you cannot resist.  You know it’s true.

All links are provided by me to help provide some context or background or additional reading.  But I didn’t make any links a numbered list because then you’ll never come back.

Without further obligatory filler text, here are the top 2014 social media legal concerns.  Read the whole thing and you’ll get a special bonus at the end.  It’s like the extra scene at the end of a Marvel movie except there’s no Nick Fury.  Probably.

1. Use of Other’s Content

Jim Dudukovich, Coca-Cola (and proud Vespa owner): The recent $1.2MM jury verdict in favor of Daniel Morel regarding the use by Getty and Agence France-Presse of photographs Mr. Morel had posted to Twitter regarding the Haiti earthquake could be a seminal case regarding the danger of relying on a platform’s terms of service to re-use others’ content; the fact that the media was held liable certainly doesn’t bode well for marketers, who are not entitled to as great a license as the press.

Ryan Garcia, Dell: This is a big one because there are two areas where clients can get confused.  First, when content is marked “Public” by a platform that doesn’t mean the information is truly public.  At least not all the time.  Sometimes it means that, mostly it means the content can be freely shared within that platform.  Second, the convergence of social platforms such as Facebook purchasing Instagram leads some people to think that the content can be freely shared between platforms and that’s just not the case.  They are both teachable moments but you have to remove that misunderstanding quickly.

2. Changing Promotional Rules

Chris Irving, Publishers Clearing House: Keeping abreast of ever changing Facebook promotional rules and making sure Marketing understands the “relaxed rules” are not an invitation to do everything and anything.

Jim Dudukovich, Coca-Cola: Although this one goes in the opposite direction from Facebook’s, imposing greater restrictions on marketers’ ability to conduct promotions on the platform [Pinterest].

Ryan Garcia, Dell: It’s always important to keep up with the latest changes in platform promotion requirements.  Lucky for all my readers I have guides to Facebook’s latest changes (September 2013) and Pinterest’s latest changes (October 2013).

3. Disclosures for the Convergence of Social with Mobile

Brian Abamont, State Farm: How do companies go about ensuring compliance with all of the disclosure and notice expectations, not just in terms of actually including them but also the expectations as to how they are presented in a form factor that puts real estate at a premium and has more limited presentation capabilities (e.g. just in time notification and proximity of disclosures to content). How can this be addressed with little standardization across the mobile OS environments for these types of things?

Chris Irving, Publishers Clearing House: Helping internal clients interpret and understand scope of FTC ‘s updated Online Disclosure Guidelines (while at the same time trying to fully understand what they really mean myself!)

4. Privacy, Privacy, Privacy

Chris Irving, Publishers Clearing House: Working with cross sectional compliance teams on all things Privacy.  As our digital footprint continues to grow,  expanding efforts to insure that privacy is baked in at design and that best practices can keep pace with fast growth. Issues include online behavioral advertising, keeping privacy polices current,  keeping privacy highlights pages current, understanding changes to polices and what accompany disclosures are necessary . . . . .

Brian Abamont, State FarmI would also place a strong “seconded” support behind Chris’ point about privacy and add that the rules are changing at a rapid pace across not just federal/national levels but also various states and provinces across North America and the rest of the world.  Furthermore, in some cases, the rules have been created after an alleged offense and seemingly applied retroactively, at a minimum from a reputational standpoint.

Daniel S. Goldman, Mayo Clinic: Probably less a legal  issue (at present), though I think there will be increasing regulation over time.  I think the issue is the public’s increasing concern about the data that is being collected/monetized by social platforms and by commercial entities and what can be divined about them from that data.  This plays out across many spectrums.  The most obvious is the negative reaction to targeted/behavioral ads, but also reflects a concern about analytics that is done on data that is collected (e.g. the “Target Article”).  I think there is a growing public perception that there is a digital “permanent record” about all of us that companies are mining to sell them stuff.

5. Fraud Fighting

Chris Irving, Publishers Clearing House: Expanding efforts to fight scammers and fraudsters on the internet who would use our name to deceive. Efforts include enhanced consumer education, public private partnerships and supporting stronger criminal penalties in Jamaica where a majority of these scams are originating.

6. Increased Attention to “Commercial Creep” and Transparency

Jim Dudukovich, Coca-Cola: This manifests itself in a few ways, from the FTC’s workshop on native advertising and the search for answers as to what consumer expectations are and the scope of consumers’ ability to distinguish between editorial/creative content vs. sponsored content/branded integration, to the NY AG’s “Operation Clean Turf” (investigating and penalizing the practice of publishing fake reviews).  Not to mention the attention the NAD has placed on native advertising/transparency (eSalon and Mashable/Qualcomm).

7. Social Behavioral Advertising

Brian Abamont, State FarmTypically, [behavioral advertising] has applied to web based activities and were easily covered by privacy policy and “About our Ads” information pages.  As the level of information from social is much deeper than a typical web site visit and marketers looks to make more advanced use of that information, how do businesses present proper consent/disclosures in the social platforms?

8. Reputational Public Relations and Marketing on Social Media

Jim Dudukovich, Coca-Cola: We’ve seen more and more instances in which the speed of social media marketing has trumped judgment, and major brands, either directly or through agencies, and sometimes even accidentally, have pushed out messaging that they later regretted (and perhaps wouldn’t have published had they engaged in a more rigorous internal review process).

Jessica Fredrickson, Walmart:  Blurred lines between marketing and reputational PR. Our clients are increasingly using reputational “advertising” to promote our good works (#RealWalmart). Whether these messages translate into sales isn’t clear and how these messages should be managed through a review process and with appropriate disclaimers is not consistent. 

9. Changes to TCPA Express Written Consent Rules

Chris Irving, Publishers Clearing House: Providing internal guidance to clients on the changing TCPA consent requirements applicable to text messaging campaigns as well as the necessary vetting for third party ads appearing on our sites where there is phone collection.

10. Crowdfunding

Ryan Garcia, Dell: The JOBS Act changes continue to come in and we have a market where many more people are comfortable with Kickstarter and other crowdfunding platforms.  The possibility of actual equity investment for the masses, as opposed to paying for items that help fund a project, has huge positive and negative ramifications.  People getting upset over late deliveries for a Kickstarter project are one thing–thousands of equity investors being upset over the direction of a brand new company is another altogether. Here’s a longer post on the subject from Perkins Coie.

And here’s your bonus as promised in the headline (and at no extra charge to you!).  Here’s a list of the top social media legal issues as presented by Mark Bisard (here’s his Twitter because he’s social!), social media and general digital guru for American Express.  These are all the details he provided or else he could have been incorporated into the main list, but instead it’s a bonus list for you. And there’s 16 things here, which makes it approximately 60% longer than the list above!  Enjoy and happy holidays!

  • Year of the Hashtag
  • Selfie is word of the year (see reputational risk parallels with Obama photo)
  • Internet of Things  (TRENDnet and FTC workshop)
  • Virtual Currencies (Largely BitCoin but also push to have VC like Farmville regulated like other FIs)
  • Mobile-Social Convergence results in Net Domination (or staggering blow in battle between search and social)
  • Real Time Marketing (Oreo-SuperBowl and West Jet type marketing, Multi Screen viewing consumption trends, internal agile and lean ux organizational changes)
  • Evolution of Cause Based Marketing to Issue Based Marketing (I made this up, but think Haiti relief on over to the surge of woman’s issue ads like Pantene, Goldblox, and  etc)
  • Data Security (spooky Aaron’s rental case, Blackberry’s death means more BYOD, President’s Exec Order, zip code cases, Hacks on big social platforms, Living Social’s 50 million person breach, the largest financial data breach in history (160 million credit card numbers stolen, but damages still hard to prove for consumers)
  • Rise of Snapchat and rejection of FB offer (new kid in town?)
  • Reed Hastings – Netflix- SEC response
  • Platform, rules and feature changes (FB, Pinterest – FB buys Instagram, Yahoo buys Tumblr, Google buysWaze – iOS7, new gTLDs and wearables – offers and gaming platforms like Groupon and Farmville struggle)
  • Regulators do their best to catch up and evolve (FTC, FFIEC, SEC, TCPA, California, State Password Protection laws, and even P-1A Visa issues for professional gamers signal evolution)
  • Transparency is clear trend (Operation Clean Turf, Native Advertising workshop, FTC’s renewed interest in black hat search practices, FTC action against spammers
  • OPP – “Public” – AFP & Getty case, GoldiBlox v The Beastie Boys saga (we were right—there’s a difference between publicly “accessible” and “publicly available for any damn thing I want” – shocker I know)
  • Big Surveillance – Big Data (big news, little in the way of change – Big data becoming legit biz practice but still fighting rep battle, Tech Titans letter to President is interesting, Path case and use of ECPA’s Wiretap Act and Store Comms Act to attack Google and others also interesting)
  • The Wallet Wars I think are the biggest news of the year.  Huge array of players/participants, consumer options.  Ready to burst.  Regulators are weighing in.  Bigger than VHS vs. Beta.  Hopefully beta wins this time.

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We Don’t Care About Privacy, But We Care About The Children

You will care about our privacy or we will make you disappear. And we’ll sing Justin Bieber while doing it.

The United States ranks privacy concerns somewhere between finding Pinterest projects we can actually pull off and how long is the line for Cronuts.  We just don’t  care much about privacy compared to the rest of the world.  That’s true from both the government’s perspective (not just the latest NSA issues, or non-issues depending on how you look at it) and the view of the public who’ve collectively shrugged over a variety of privacy concerns.  We’re a far cry from Europe where they have documented not one but two different Fundamental Rights that discuss privacy in a digital age:

We’ve discussed privacy in several cases before–paranoia over government tracking the information you put out there, hiding privacy changes in a privacy policy, and how Facebook’s graph search changes privacy concerns.  But generally speaking, privacy isn’t that big a deal.

There are two notable exceptions to our lack of privacy interest.  First is medical information, because nobody needs to know about that mole.  Second is anything involving The Children.  Because we believe The Children are the future.  Secure their privacy and let them lead the way.  Show them all the Instagrams they possess inside.

When it comes to meaningful privacy legislation, unless it involves medical information or The Children, it just doesn’t happen.  So it isn’t too big of a surprise that two bills pending in the California state legislature are dealing with social networking privacy and The Children.  SB-501 deals with collecting personal information from The Children on social networking sites and will require sites to remove any collected information within 4 days of a request.  That bill is far less interesting than the other one currently working through committees.

California bill SB-568 has the super-sexy title of “Privacy: Internet: minors.”  Or, as all the cool kids are calling it, P:I:m.  The bill tackles two issues–not marketing certain products to minors (such as guns, alcohol, and spray paint–which means your idea to launch a website that tries to get kids to drink vodka while packing heat and then go tag a building is totally not cool) and forcing social networking sites to remove content posted by a minor upon request.

The second issue is one we’ve heard before.  The Children are young, you see, and so we should give them the ability to remove those embarrassing duckface photos they’ve been posting for the past year.  As soon as they realize how embarrassing they are.  Unfortunately, this somewhat noble goal isn’t really addressed by P:I:m because of some giant loopholes in the law.

The first giant loophole is that while the original content can be taken down, any reposted content by another party is not subject to the request.  So the moment someone shares that photo or copies it to their own pages/files, all control is gone.  While other sections may force that photo to not be identified with the person making the request, the content itself will still remain online.

The second giant loophole is that these requests will not need to be honored if the platform provides a way for the user to remove the content themselves.  If The Children can’t read the manual, this law doesn’t help them.  And are there any platforms still out there that don’t allow you to remove your own content.

The third giant loophole isn’t as much a loophole as a design flaw–it only applies to requests by minors.  Yes, we will protect The Children but only up until the day they are 17 years and 364 days old (or 365 for those rare Leap Babies, unless they insist on being 1/4th of their actual age in which case they are annoying and will lose all protection).  The moment they turn 18 years old then they are ousted from The Children faster than David Lee Roth is kicked out of Van Halen (again).  This may not be a loophole, but it is a strange design decision to only offer some protection to The Children while they are still one of The Children.

And ultimately, given these three loopholes, who is this law protecting?  Any truly embarrassing content will be reposted by others, or it will be on a platform where you can delete your own copy, or by the time you are embarrassed by it you are likely over 18.  In any of these cases the law won’t help you, so who will it help?

I tried to ask the author of the bill who he thought would be protected by this new law.  I thought it was a relevant question since, even though it’s only a state law, it will likely have national implications since California is a big state (and has the headquarters of some big social networks whose names rhyme with Schmacebook, Schmitter, Schminterest, SchminkedIn and Schmoogle).  Unfortunately, I can’t.  You see, although the bill’s author Senator Steinberg is concerned about The Children and social networking, his website only allows you to contact him if you live in his district.

Maybe if I was under 18 he’d listen.

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Want To Know What A Social Media Law Final Looks Like?

Not that anyone actually writes law school finals with a pen, but you get the point.

Thinking about going to law school or want to revisit those horrifying amazing three years of your life?  If you’re curious about a law school final, or what a final looks like for a social media law class, then you’ve come to the right blog post.

Long time readers may recall when I first announced I’d be teaching a class at the University of Texas School of Law on Law and Social Media.  Last night I finished entering the grades for my students and so the class is officially over.  It was a blast to teach and I hope I get invited back to do it again, although developing the material was a lot more work than I expected.  Yes, I was warned this would be the case but I thought that all the other material I had in training about various social media legal issues would help.  They did–but it still took a lot of time to convert that into a format that was better for students.  That’s a big reason why this blog has been so silent these last few months.

As I mentioned in the original post, my class was about the many different legal topics that social media impacts.  There’s a lot of attention around social marketing and for good reason–that’s a highly regulated area and one that’s ripe with consumer protection issues.  But that is just one area I wanted to cover–employment, free speech, privacy, and several other topics were worth exploring.  I wanted my final to touch upon several topics while giving the students a bit of a taste of practicing in this emerging field.

Just to put this in context, the students had three hours to complete this exam (including reading time).  They could use any notes they created or assisted in creating and all three questions were weighted equally.  The final is shown below.  No, I’m not going to give you my model answers but feel free to ask questions in the comments about any issues you see.

Question One

Congratulations!  After four rounds of interviews and a grueling series of one-on-one discussions with the Board of Directors, you have been appointed General Counsel to BCB — the only social network dedicated to Bacon, Cats, and Babies.  With over four million users and an average of one million new pieces of content daily, BCB is one of the hottest social networks in the world.  It’s basic functionality allows users to upload a photo that features either Bacon, Cats, or Babies (or combination thereof).  These photos can be Liked and Shared and the picture can also be linked to some other online location–users browsing the site can click on the photo to be taken to the link provided by the original content creator.  Unfortunately, the site has yet to make any revenue and its initial funding is being consumed by the massive servers BCB must use.

BCB’s VP of Making Money has decided to make money through affiliate programs.  He would like every piece of content to be linked to an item that can be purchased from a web site.  Each link would contain a code that gives credit for the sale to BCB and the sites have agreed to pay BCB 3% of all sales.  For pieces of content that are posted without a link, BCB’s software will automatically select the optimal commercial item to link to the content and embed BCB’s affiliate code.  If the piece of content posted by the user already has a link then one of two things will happen:

1. If the link is to a non-commercial page, that link will be moved to a special button under the photo and the photo itself will then be linked to a commercial item similar to photos without links.

2. If the link is to a commercial page then the BCB affiliate code will be embedded in the URL.  If the link already has an affiliate code, that original affiliate code will be stripped out and replaced by the BCB affiliate code.

BCB’s Terms of Use section that deals with content says the following:

You can only post content you have permission to post.  Anything you post may be used by BCB as part of normal site functionality or in our efforts to make money.

Draft an email to the VP of Making Money describing the risks of his proposed plan and the changes to the Terms of Use you would propose to address those risks.

Question Two

The VP of Marketing for BCB has come to you with a plan for a new contest and would like your advice on how to proceed.  The contest would run for the month of May and invite all site users to submit their best BCB content that includes pictures of Google, Owen Wilson, or Vince Vaughn (in addition to the obligatory Bacon, Cat, or Baby).  He is hoping to capitalize on the popularity of the upcoming movie The Internship in which Wilson and Vaughn play unpaid interns at Google and is also hoping the contest has side benefits of making BCB show up in more Google searches.  He would like to give away $15,000 to the best content in terms of ten $500 prizes, one $2,500 prize, and one $7,500 prize.  Winners will be determined by the number of Likes clicked on each picture.  He would like the contest to be open to anyone in the world age 13 and up.

Draft an email to send to the VP of Marketing to discuss what changes, if any, he would need to make to his contest prior to running it, or highlight any issues/concerns you may have.

Question Three

You receive the following email from your VP of Human Resources:

Hi new General Counsel (sorry, I should know your name but I’m really busy)!

I’ve got a bit of a situation I’m hoping you can advise me on.  We hired Pat as our head of Online Community about a year ago.  I conducted the interview of Pat myself and I was really excited to do so because I had checked out all of Pat’s social media accounts prior to the office visit.  I was especially interested because it turns out Pat and I go to the same church and I didn’t even know that before!  

Anyway, I wanted to make sure Pat was a thorough professional in all their social media interactions so during the interview I had Pat log into all the major platforms and I browsed through the accounts, just to make sure there wasn’t anything tasteless that might go viral and embarrass us.  It was all good so Pat came on board and did a great job for many months.

But in the last few months, Pat has gotten weird.  Mostly on personal posts, but if you read those then you can see how it spills over to our corporate accounts.  Our users have started to notice too and Pat got into a nasty debate last week over whether a picture of Canadian Bacon was eligible for the site.

We may need to let Pat go soon.  Anything I need to be concerned about?

Draft a response to the VP of Human Resources.

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Why We Can’t Talk About Privacy Without–OMG SOMEONE IS LOOKING AT MY TWEETS?

I really wanted to talk about the elephant in the room but WHERE DID THE ELEPHANT GO?!?!

Online privacy is a complicated issue made even more difficult by the wealth of information we post.  Random thoughts, photos, location check-ins, they’re all part of our social universe.  And there are some real issues worth discussing.  Unfortunately, almost any real discussion about privacy either fuels or is fueled by paranoid delusions of The Government or The Company grabbing all your data and using it for nefarious purposes.  Like powering a moon laser to destroy New Zealand or trying to sell you something.

Here’s the latest bit of paranoia-masking-itself-as-journalism.  Yesterday, the Washington Post ran an article with the ominous headline “Social tracker: It knows where you are, when you’re there, and when you’ll be back.”  And it starts the article with this terrifying statement:

The U.S. government can track where you are, who you’re with, what you look like, and where you’ll likely be next thanks to a tool created by defense contractor Raytheon.

That’s right, the government is watching you.  Yes, you.  They’re going to know everything about you thanks to some powerful tool being developed by a company evil enough to call itself a defense contractor.  They are going to pick your name out of the Random List of Names (I’d say telephone book but I haven’t seen one of those in ages) and start tracking you everywhere you go.  Every move you make, every step you take, they’ll be singing a song by The Police.

In this age of new-journalism, which we could easily call not-journalism, it’s no surprise to see sensational blog titles and misleading angles to stories.  It’s just a shame when there could be an actual, fruitful discussion about issues if we could just all calm down.  Case in point: our fun Washington Post article.

This is an old story.  Not a recycled story that got another news cycle, but somehow an old story that is just now getting covered.  Maybe it’s because Raytheon is trying to sell their solution to someone.  Maybe because some disgruntled employee leaked the video that triggered the wave of coverage.  But if you dive into the details of the solution or watch the video, some things should jump out at you.  Things like:

  • The video talks about scraping data from Facebook, Twitter, Foursquare, and Gowalla.  If you don’t know that last one then that might be because it ceased operating in March, 2012.  
  • The video shows some screens filled with data that are then condensed into presentable bits.  If you pause on any of the screens of data you will discover that the scary screen of data has 1 data point from 2006, 4 from 2009, and 1 from 2010.  Maybe there are more, but if you’re looking to track me down three years in the past, well, quite frankly, I’m more concerned that you have a time machine than that you have access to my social graph.
  • They run through a scenario where they track an employee of Raytheon.  An employee of Raytheon.  In other words, someone who they can get access to their social graph as opposed to purely public data.  My employer knows where I’ll be most days.  And they know what I look like.  I don’t find that scary because I don’t wear a tinfoil hat.
  • Oh, and in tracking this employee of Raytheon they come up with the amazing conclusion that this employee goes to the gym during the week at 6am.  So you could totally track him down.  They even tell you which day and time is best.  What don’t they tell you?  Which gym.  I’ve been to Dallas and I can assure you there are more than one gym in the entire DFW area.  If you’re going to scout out every gym on Mondays and Wednesdays at 6am to find this Raytheon employee, I’m pretty sure you’ll need thousands of people or one person thousands of weeks.  Either way, how about you just email him instead?

Bottom line: there isn’t anything new here.  Quite the opposite.  So why is this a story being covered by dozens of media outlets in addition to the Washington Post?

Because it fuels your paranoia.  The story that someone is following you on social media gets clicks.  Even if it isn’t accurate.

Now, what is accurate here is the real issue of people thinking through the data that they publish in a public matter.  There’s an issue in how social networks create the Informal Tone beast that encourages us to share information we wouldn’t normally share.  There’s an issue with the privacy and control paradox that has shown the more privacy controls we give to social media users, regardless of their effectiveness, the more users will share private information.  There’s an issue with removing social content once it gets published.  But those aren’t going to be discussed as long as we’re made afraid for a few seconds that someone is going to find out we went to the gym three years ago but spins it like we’re going to be stalked next week.

So here’s my long-standing, still-effective two part privacy advice for all social media privacy issues:

1. If you read an article/blog/whatever about social media and privacy, pretend the facts it presents are completely fake and then figure out if the article matters to you.

2. No matter what the privacy settings say, if you’re concerned about something you posted on a social platform with hundreds of millions of users on it being discovered by the general public then just don’t post it.  Use privacy settings but don’t rely on them.

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Filed under Facebook, Identity, Informal Tone, Privacy, Social Media Risks, Social Platforms, Social Tracking, Twitter

How Social Media Helps And Hurts Elections

Tablets in 2000 had a passable Notes app, but Angry Birds was horrible.

Election nights are always fascinating to me.  Not only do you have candidates and issues but you also have analysis from across the spectrum and a wealth of different technologies to show you the results.  12 years ago the country watched while Tim Russert used an early tablet device known as a whiteboard to show the country how the entire election hinged on the outcome of Florida (a lesson we would continue to learn for weeks after).  Last night we had networks using giant interactive maps sketching out potential scenarios, zooming in on specific counties and comparing their results with previous elections.

Now that social media has reached a level of commonplace acceptance (we’ll talk about that in a future post) I found it fascinating to see how it became part of the election night process.  We were connected with our favorite reporters or candidates or analysts and could instantly see what they had to say throughout the night.  No more just waiting on a particular channel until they came back on or flipping between channels to find them.  And we could interact with our friends and colleagues around the world whether they agreed or disagreed with our political views.

Personally, I was able to participate in a group chat with ten friends whom I frequently email.  In the interests of being a bit more interactive we ended up on a giant Facebook chat session and over the night sent over 1,000 messages back and forth.  We had participants on both coasts, people in the middle of the country, even one Chicago resident who happened to be in Australia.  It was an amazing feeling to have these conversations as the night progressed and more than once I was thankful for what social media has done to connect people.

But as we’ve seen with so many issues, social media can have benefits and drawbacks.  Let’s be positive and start with the benefits. Beyond connecting people and providing a forum for discussion, social media is fast and widespread–two fantastic qualities for something so time sensitive as a day to conduct nationwide voting.  Some states in the Hurricane Sandy-ravaged northeast passed emergency laws that allowed residents to vote in any polling location given the difficulty in traveling.

Multiple polling location voting is also something that was available for the first Presidential election in my own, non-hurricane ravaged Travis County in central Texas.  Austin residents could vote in any polling location.  That’s a great thing provided you have access to a Twitter feed or connected account that would tell you while the line at a grocery store is 1.5 hours long there’s a polling location two miles away with nobody in line.  I expect that by the next election we’ll see a collection of apps or message networks that can better alert voters of potential lines and advise them where to go.  I also hope that trend of allowing people to vote in different locations continues.  That’s a great benefit social media can bring to the current election process.

There is, however, a dark side to social media and elections.  Social media has flooded us with opportunities to share content with our friends and community.  Status updates, locations, photos, videos, badges–these are a part of our lives and we want and, to some degree, expect to be able to share the content we choose with the audience we choose.  So we grow concerned or upset when we hear stories about how smartphones are not allowed at some state’s polling places.

The Citizen Media Law Project has a great table summarizing the various state laws on recording devices in polling places–whether the devices are allowed, whether there is a statement on their use, and whether you can record your own vote.  There is certainly an innocent side of taking pictures at a polling place.  Pictures of people voting for the first time.  Pictures of people proud to support their candidate.  Funny pictures of people dressed up like Big Bird in line to vote (because that’s how we roll in Austin).

But there’s also a dark side to pictures in polling places.  Like stories of employers who threaten employees with termination unless they take a picture of their ballot showing they voted for a particular candidate.  Or organized efforts to force proof of votes through threat of violence or rewarding with payment.  The risk of ballot recording can be determined by each state but it is something to keep in mind–my last post was about how social media has broken anonymity, a valuable commodity.  Certainly, anonymity for a ballot is an important value to protect and if it means we lose some funny filtered Instagram pics of a ballot as a trade-off then I hope most people will be okay with that.

However, elections are getting more complicated and now many voters do their research on their phones.  Possibly while in a long line waiting to vote.  Walking into a polling place and then being told you can’t use your phone can cause a bit of a panic if you’re struggling to remember dozens of propositions or ballot initiatives or local candidates.  You should be able to record your notes onto paper and then vote, if that’s an issue.  Still, that’s remarkably inefficient and something that social/mobility should be able to address.  I’m also hopeful the problem of recording via smartphone can be solved while allowing people to use their phones for appropriate items like accessing notes, but it is a tricky balancing act.

And then there’s the biggest issue of them all–why can’t we vote using our smartphones?  Not exclusively, of course.  There should still be polling places and absentee ballots and other measures.  But with the rise of smartphones across the country, shouldn’t we be able to use them to vote?  That may seem difficult or outlandish, but wouldn’t we have thought the same thing a few years ago about depositing a check with a phone (now many banks support this by taking a picture of the check)?  Or paying bills with your phone (even more banks support this, heck even Starbucks lets you do it)?  Or signing contracts (you can e-sign contracts on your phone now, even complex contracts like real estate closings)?  Those are activities that many years ago we couldn’t have predicted could be done with a phone, yet they are now commonplace.  Why not voting?

When you see video footage of people waiting in lines for hours to exercise their most fundamental of rights I would think everyone can agree that we should have a better solution.  Granted, many people were concerned about e-voting machines and you still see the random stories of glitches and rogue software so there’s sure to be some pushback on the idea of using your phone to vote.  But we’re fooling ourselves if we thought paper ballots were always secure–phones should be more secure than previous systems we relied upon for decades if not longer.  And there would always be other options.

Social media is about conversations and speech.  Voting is the ultimate realization of free speech.  Shouldn’t social media and the mobile technology wave be able to help bring voting into the 21st century?  It’s an idea worth pursuing and we’ve got a little under 4 years to work on it.

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Filed under Authentication, First Amendment, Identity, Laws, Social Tracking

Social Media Has Screwed Up Anonymity

Anonymity used to be about not revealing information, like all that naked dancing you do behind your fence at noon.

Being anonymous is a powerful thing and can be used for many good purposes.  Sadly, social media seems to ignore virtually all of them.

Just yesterday I was blogging about how the systems that gave rise to social media created an environment where people are becoming disconnected from one another.  This is related to being anonymous because many platforms do not authenticate users so you have many people not using their name or any name.  The resulting disconnection can lead to cyberbullying and I wondered if perhaps the technology that brings people together is also driving some people apart through this disconnection.

But after considering two stories I’m also wondering if social media has completely screwed up anonymity and if there’s a way we can reclaim it.

Here’s the first story.  It’s a cute little tale about whether your dinner party needs a social media policy.  (Hat tip to my friend @MarcVock for sending me the story.)  The writer had a dinner party that included some social media heavyweights and the resulting photos, check-ins, and status updates resulted in potentially millions of people seeing details about a private event.  He got a text from someone wanting to stop by for the party while it was going on.  He later heard from someone else who liked his kitchen lamps.  Neither of those people were invited over.  It’s a cute story with only a modicum of creepiness–certainly it would come as no surprise to someone reading a blog about social media legal issues that there may be some tension when a private gathering has some social media celebrities or heavy users: the private event will end up being something less than private.

But compare that story of a dinner party gone public to the much more sobering tale over two college students having their sexual orientation outed on Facebook.  (Hat tip here to another friend, Will Spence.)  The students did all they could to set their Facebook profiles to be private since the students were living somewhat openly while in college but had not yet told their family.  But when another user created a Facebook group for the Queer Choir they had joined on campus, that event of being added to a public group was broadcasted to all their friends, including family members.  This then forced the issue and the students were asked point blank about their sexuality by their parents.  That’s not as cute as having a dinner party seen by potentially millions of people.

Mark Zuckerberg is well known for saying that you should have one account on Facebook because you are who you are–that the days of having a different image at work from the one you have outside of work are coming to an end.  But they still maintain extensive privacy controls for different activities.  Ironically, having more privacy controls can actually lead people to reveal more information about themselves.  It’s called the illusion of control and there’s research to back it up.  This Texas case wasn’t directly about that illusion–although perhaps because both of the outed individuals had locked down their profile they thought it was safer to connect with more people they were open with, and it was one of those people that added them to the group.

It has always been difficult to control private aspects of your life if some people know and others do not.  That was true before social media and is even harder today when one slip and everyone can see forever.  That said, have we completely screwed up the concept of anonymity?  There is a long and distinguished history of anonymous speech in the social and political arenas.  Today, anonymous speech is mostly nasty comments.  And anonymous parts of our lives are almost completely ignored.

France has been advocating for a right to be forgotten online.  This was considered an outlandish view and almost impossible to implement, but the debate continued.  This year the FTC issued its report Protecting Consumer Privacy in an Era of Rapid Change where they discuss multiple times the concept of a digital eraser button that would delete individual pieces of content (potentially even harder to implement than the widespread French right which would cover all data about a person).

But aren’t we going about this all wrong?  Anonymity isn’t about taking something back, it’s about not putting it out there in the first place.  If I don’t want pictures of the inside of my house put online, shouldn’t I be able to designate that space as private even if friends come over who Instagram daily?  If I don’t want pictures of myself or my children popping up online, shouldn’t there be a way to register our faces in Facebook’s much discussed facial recognition software so that the picture doesn’t go public?  Try uploading a video to YouTube with a song in the background and you’ll see it is immediately flagged for copyright issues–why isn’t this level of protection available for personal privacy?

Benjamin Franklin famously wrote “Three may keep a secret, if two of them are dead.”  Perhaps the rise of social media shall mean the death of all secrets.  But many cultures around the world also have some version of the phrase “Good fences make good neighbors.”  In addition to debating the merits or feasibility of removing information once it’s been published, isn’t it worth a discussion on ways to honor people’s wishes for privacy prior to publication?

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Filed under Authentication, Cyberbullying, Facebook, First Amendment, Identity, Privacy, Social Platforms