At this point everyone has heard of social media and has been made aware of cautionary tales of what can be viewed under the law as socially illegal and the consequences that one can suffer from ruined reputation to termination of employment to penalties for regulatory violations. Many bar associations around the country have made the knowledge regarding social media and use of these platforms part of the due diligence expected of attorneys in certain areas of legal practice, such as e-discovery and trial preparation. In addition, clients assume that attorneys know how the law applies in this social and digital world of ours look to us for guidance in being in compliance with all relevant guidelines, regulations, terms of services, licenses, and other federal and state laws in reference to social media activity.
In 2011 the world was a different place for attorneys regarding social media. These high expectations for attorneys regarding what we know and how we advise our clients on their social media activity did not exist. Resources and books highlighting case law in the social media field were extremely few and most had not been written yet. Continuing Legal Education (CLE) courses focused on the basics of social media: what is it, what do the platforms look like, how are they used, why do we as attorneys need to care? I was one of those attorneys looking for answers in this new world, and not finding them decided to launch Law2sm so that when I did, I could share with my colleagues. A part of me believed that social media was not just a fad and it would change the way we interact with each other and conduct business. And it has and it does. Especially when mobile and smartphones hit the scene. Combined this one-two punch of social media and mobility hit the business community in such a way it is still finding its way, not to what it was before, but to a different reality of how to engage clients, employees, vendors, family members, friends, and more.
Those CLE courses on the basics of social media are still available. I urge their creators to make sure they update them periodically as 1) the platforms evolve, and 2) case law is decided and creating precedents to be followed. In this blog I want to go over some of the recent developments in social media law and the nuances that are coming to light, as well as offer some insights into what future trends we need to look out for.
The Platforms Have Evolved
Facebook has hit the billion accounts mark. This is actually old news – it hit it a couple of years ago. But with that growth in accounts and users it also matured in terms of responsibility to those users. Although this is an issue for debate when it comes to privacy and the use of user information to “sell” or “market” products and services as with its sponsored stories program, from a legal standpoint it is a lot easier to request information from Facebook and the other social media platforms for litigation and e-discovery purposes. Subpoenas are not alien to the social media headquarters anymore. Most of the platforms have specific instructions easily accessible online offering guidance as to how to put in a request, the information needed in the request, and timeframes. The process is not without hiccups however. One example: Facebook.
The Users Have Evolved
There has been so much about social media activity and consequences in the news that users are starting to self-regulate their posts and their uploads as well as their privacy and preference settings. This does not mean all users have become sophisticated enough to prevent a mistake from happening, but we do see more employee trainings occurring to discuss the issue and bring it to user’s awareness. Most of the time things that happen are followed with “I should have known better.”
The Agencies Have Evolved
Federal, state, and regulatory agencies have acknowledge that social media is not going away and that the professionals in the regulated industries need, want and will use it as a method of communication with clients, potential customers, the public, and each other. Instead of holding the threat of heavy penalties over the industries’ heads, they are offering specific guidance to ensure that social media use does not end in compliance violations. Professional and trade organizations are also supporting the cause issuing guidelines and white papers to its members to help clarify the agencies’ rules or to offer rules of their own if the agencies have been silent. A good example is the National Labor Relations Board (NLRB). The NLRB has claimed jurisdiction in reviewing companies’ social media policies to ensure that firings based on social media activity did not violate any of the employee’s rights. In the beginning the memos issued by NLRB had a very bias slant towards the employer being automatically wrong. Most recent decisions and memos have shown the NLRB to consider more what was actually posted by the employee other than just that it was an employee posting. The NLRB also provided a sample social media policy that it had “approved” for further guidance.
The Law Has Evolved
Unlike three years ago we have laws in place that address specific issues regarding social media use and activity and cases that apply laws already on the books to this social world. Since 2012, The National Conference of State Legislatures (NCSL) has been putting online legislation enacted or being considered that relates to employer access to social media usernames, passwords and accounts. (See more at: http://www.ncsl.org.) It also includes those bills that relate to privacy and student data. It is interesting to see how far this particular issue is being protected by the states since the federal bills were defeated in Congress. Another interesting example is the finding that a woman violated a restraining order by harassing her daughter via the online bulletin board platform Pinterest.
The Issues Have Evolved
When privacy and social media was talked about in the beginning it focused on passwords, access, and whether it was legal (or ethical) to access someone’s account if you were not specifically invited by them to do so. Today the discussion on privacy has expanded as concerns regarding new types of devices and input methods to social media accounts have been developed. For example, drones. It appears that those whirling mini-aircraft are not so innocent. They come with cameras already installed or that can be easily mounted on and now come with programming that can automatically capture your data form your smartphone through a Wi-Fi connection. The problem is the Federal Aviation Administration (FAA) has lost a case to regulated them. So as the FAA appeals, there is currently no oversight as to what these drones can collect and then do with the data they have captured. Is your client excited about drone delivery as promised by Amazon? Might be time to reflect a moment.
In addition, we are finding that the privacy issue is transforming into a security question. With the rash of recent breaches at retail entities (think Target, Neiman Marcus, Michaels, etc.) and phishing attacks (social engineering emails) businesses now need to concern themselves with employee’s smartphones (Bring Your Own Device – BYOD) and data leaks in addition to internal system security controls. As for passwords and security? The biometric industry doesn’t have just an app for that but is also proposing a pill that can be taken every morning to identify and verify your identity.
Society Has Evolved
This year the Internet celebrated 25 years since its inception in a paper written in 1989 by British computer scientist Sir Tim Berners-Lee titled simply “Information Management: A Proposal.” To celebrate the Pew Research Center released a survey regarding what Digital Life would be in 2025. The gist of the survey was that the “Internet would be invisible” – meaning that it would be so pervasive we would not notice it anymore. It wouldn’t be outside of us it would be part of us, within us, surrounding us. Are we there yet? No, but every once in a while it seems that way. When was the last time you left your smart phone or table at home or at the office? Gives a new meaning to the term “can’t live without it” doesn’t it?
The conclusion is that there is no conclusion. No end. Social media may change in terms of how it is presented and used. But this method of communicating and conducting business and relationships is not going away. It will evolve. Will you and your practice evolve too?