The "Googling Juror"

Wed, 21 Mar 2012 19:40:24 GMT

In an on-line article titled, “Rely on Instructions to Curb the Socially Networked Juror” (3/19/12), Dr. Ken Broda-Bahm writes that “the ‘Googling Juror’ has emerged as a massive concern in the courts with plenty of stories on the process being thrown into mistrial by panelists who had to look up a fact, couldn’t take their finger off the Tweet button, and felt the need to “friend” parties, attorneys, and other jurors.” Dr. Broda-Bahm references a new article in the Duke Law & Technology Review (St. Eve & Zuckerman, 2012) titled, "Ensuring an Impartial Jury in the Age of Social Media" that discusses a survey of 140 former jurors. He quotes a juror as saying that “nothing” could prevent her from using social media during the trial. The good news is that of a sample of 140 jurors surveyed, only 6 reported a temptation to use social media during their trial, and none of those 6 succumbed to the temptation.

In her article, the Hon. Amy J. St. Eve (Northern District of Illinois) and her law clerk, Michael A. Zuckerman, discuss the juror anecdotes that leave trial lawyers sleepless: the Arkansas death sentence set aside by a tweeting juror, the British juror who conducted a Facebook poll on how she should vote in deliberations, and the Florida juror who may face jail time for “friending” a defendant. Although all these anecdotal examples are important cautionary tales, Dr. Broda-Bahm contends that they do not define the common experience of most jurors.

As a possible solution to social networking abuses, he recommends asking the court for specific social media instructions that take the additional step of explaining why the jurors are being asked to refrain from social networking during trial. However, will a social media instruction be sufficient to curb social networking behavior among jurors?

Social Media and Global Recruiting

mark.toth@na.manpower.com (Mark Toth) — Tue, 20 Mar 2012 12:43:05 GMT

As a supplement to today’s webinar, here’s a rather interesting piece from Law 360 on the wide variety of approaches different countries take on social media and recruiting. Hope you can join us today.

As a supplement to today’s webinar, here’s a rather interesting piece from Law 360 on the wide variety of approaches different countries take on social media and recruiting.

Hope you can join us today.

Webinar Today

mark.toth@na.manpower.com (Mark Toth) — Tue, 20 Mar 2012 10:22:07 GMT

Today @ 2:00 pm Central, I’ll be making a guest appearance on our next ManpowerGroup webinar, entitled Social Media and the Talent Landscape: What HR Needs to Know About Social Media. I’ll be providing some legal commentary, including tips on how to recruit using social media without going to jail and how to build the perfect [...]

Today @ 2:00 pm Central, I’ll be making a guest appearance on our next ManpowerGroup webinar, entitled Social Media and the Talent Landscape: What HR Needs to Know About Social Media.

I’ll be providing some legal commentary, including tips on how to recruit using social media without going to jail and how to build the perfect social media policy.

Hope you can join us! To register, click here.

Your Digital Estate: Facebook Login After Death, The New Estate Planning Laws

Mon, 19 Mar 2012 15:31:25 GMT

Digital Estates: Your Facebook Account Akin to Your Glass Animal Collection According to the Associated Press, Nebraska and Oregon are next in line to consider a law, like one passed in Oklahoma last year, whereby a person’s facebook account becomes a part of their formal estate. The issue of digital rights as a part of [...]

Digital Estates: Your Facebook Account Akin to Your Glass Animal Collection

According to the Associated Press, Nebraska and Oregon are next in line to consider a law, like one passed in Oklahoma last year, whereby a person’s facebook account becomes a part of their formal estate.

The issue of digital rights as a part of an estate arises out of situations like that of Karen Williams. In 2005, after her 22 year old son was killed in a motorcycle accident, the Oregon mother’s fight with facebook began to gain access to her son’s page. Though she had found his password, after emailing facebook to tell them what had happened and to ask them to maintain his page, so that she could learn more about him and read what people wrote about him, within two hours they had changed his password, locking her out.

While Williams ultimately got back into her son’s account, it wasn’t without having to file suit and endure a two-year legal battle that she finally ended up being granted 10 months of access before her son’s page was removed.

Lawmakers are considering passing laws to make facebook and other social media accounts a part of a person’s “digital estate,” because then, if the person dies without a will or other legally sufficient document detailing passwords and instructions regarding how these accounts are to be dealt with, relatives will be able to have a legal default access option.

Under Facebook’s current policy, deaths can be reported through the use of an online form. When the site learns of a death, it locks that person’s account in a memorialized state. Certain information is then removed, and privacy is restricted to friends only. The profile and wall are left up so friends and loved ones can make posts in remembrance. Additionally, if a close relative asks that a profile be removed, Facebook will honor that request.

Oklahoma was the first state to address the issue, passing a law that allows friends or relatives to take control of social media accounts if the deceased person lived within the state (which only begs the question regarding relatives not living in the state).

In general, these measures treat Facebook, Twitter and email accounts as digital assets that can be closed or continued by an appointed representative. In other words, they become like any other asset in the estate.

In addition to granting the same rights as the Oklahoma law, Oregon’s proposal may also include a sort of instruction letter, that would contain online information and passwords, in the event a person becomes incapacitated, or for after their death.

The idea of a resource document with login information is one I first encountered at a continuing education event on a sort of ethical will. Essentially, it entailed a sort of addendum to a formal will, which contained information about online bank account log in information, email, and social networking sites. The idea of one document containing all of the information necessary to access a person’s accounts seems like the best way to ensure that your entire estate is in order. This form of access, however, does not supplant for post-mortem access and control of a person’s social media account.

Your Estate Planning Attorney can make further common sense type recommendations, such as with an online access document, based on problems they have run into in the past, or tools that they have found work particularly well. Given the fact that laws typically lag far behind technology, its always a good idea to be proactive in thinking about what future quagmires might present themselves when it comes time to distribute your estate.

Social Media & Recruiting

mark.toth@na.manpower.com (Mark Toth) — Mon, 19 Mar 2012 14:36:53 GMT

On Tuesday @ 2:00 pm Central, I’ll be making a guest appearance on our next ManpowerGroup webinar, entitled Social Media and the Talent Landscape: What HR Needs to Know About Social Media. I’ll be providing some legal commentary, including tips on how to recruit using social media without going to jail and how to build the [...]

On Tuesday @ 2:00 pm Central, I’ll be making a guest appearance on our next ManpowerGroup webinar, entitled Social Media and the Talent Landscape: What HR Needs to Know About Social Media.

I’ll be providing some legal commentary, including tips on how to recruit using social media without going to jail and how to build the perfect social media policy.

Hope you can join us! To register, click here.

Social Media, Social Media, Social Media

dschwartz@pullcom.com (Daniel Schwartz) — Mon, 19 Mar 2012 12:45:41 GMT

Lately, it feels that employment law is revolving solely around social media. Indeed, many of my speaking engagements recently have all had a social media bent. (This week, I’ll be keynoting a speech to the Connecticut chapter of the Society of Marketing Professionals Services on Strategies and Risks on Social Media in the Workplace). Over... Continue Reading

Over the weekend, the Hartford Business Journal even published a few articles about lawyers using social media — of which I was quoted.

All of this can leave those on the outside wondering if too much is being made on social media’s true impact in the workplace. (Indeed, I wrote about how I was looking for something new on the topic last month.)

Here’s my take — even if too much IS being made about social media right now (and I’m pretty sure there is) social media’s impact is undeniable. Social media is not going away. I don’t mean not going anyway anytime soon, I mean not going away period.

Over 850 million people are now on Facebook; 500 million on Twitter. And many more on sites like LinkedIn, Pinterest, and even Google+. These people are not going to wake up tomorrow and realize that social media is a colossal waste of time.

People are using it. Using it to make connections and to learn things. And they are using it a lot on their smartphones. Those firewalls that employers used to use to prevent access a few years ago are virtually meaningless today.

What are some of the implications for employers of understanding that social media is here to stay?

Employers need a comprehensive strategy to dealing with the fact that employees ARE going to use social media. It’s not enough to simply say that they can’t; employers ought to be educating employees on how TO use social media effectively too.
Employers should remain focused on performance. If employees are not getting the job done, then does it really matter that they were on Facebook? Just think back to a different generation — what did you do with employees who were on the phone too much?
Employers ought to understand what’s going on with social media. Get on it. You may not find utility on these sites but that’s beside the point. Understanding HOW people are using it can give employers some perspective to what is truly going on. People aren’t discussing what they had for breakfast much anymore (and I’m not sure they ever really did.)

But one last overriding point that is worth emphasizing: Social media does not mean you have to throw out your existing rules. The rules on confidentiality, or anti-discrimination, for example, still apply on the online world. Employers just need to understand that they what happens in the workplace isn’t necessarily staying in the workplace anymore.

So, how do you START with these sites? Do a search for “Facebook 101″ or “How to Use Facebook”. There are plenty of sites offering free help.

Yahoo patent case against Facebook

vglotempio@klosslaw.com (Vincent LoTempio) — Sun, 18 Mar 2012 19:38:18 GMT

Yahoo filed an infringement lawsuit against Facebook based upon 10 patents. Some of the patents have been around for a few years. What took them so long to make this claim?

Or is it just coincidence that Facebook is about to go public with huge IPO. Facebook filed for a $5 billion initial public offering which could be one of the largest technology IPOs ever.

Do you think Yahoo is thinking that a few shares of Facebook would be nice addition to their Stock portfolio?

The Yahoo complaint (PDF) lists 10 patents in which they argue Facebook has infringed. Barring a settlement it will be up to a jury to decide if the Yahoo claims are valid.

Yahoo released a statement that Yahoo has

“invested substantial resources in research and development through the years, which has resulted in numerous patented inventions of technology that other companies have licensed. These technologies are the foundation of our business that engages over 700 million monthly unique visitors and represent the spirit of innovation upon which Yahoo! is built. Unfortunately, the matter with Facebook remains unresolved, and we are compelled to seek redress in federal court. We are confident that we will prevail.”

Facebook and Yahoo have recently teamed to provide a SOCIAL BAR which allows Yahoo users to know what their Facebook friends are reading about on Yahoo.

Because of this new relationship Yahoo is benefited by the increased traffic to their website.

I remember when I was in law school and Prof. Fisher my Wills and Trust teacher said to us "money makes people funny".

The learned professor meant that just because a bequest is to a family member don't think that they're not going to fight over the assets when the estate is settled.

Even though Yahoo and Facebook have recently been playing nice together, I guess Yahoo just wants a little bit more money. In response, Facebook has released a press release stating:

“We’re disappointed that Yahoo, a longtime business partner of Facebook and a company that has substantially benefited from its association with Facebook, has decided to resort to litigation. Once again, we learned of Yahoo’s decision simultaneously with the media. We will defend ourselves vigorously against these puzzling actions.”

I was asked my opinion recently by reporter Rachelle Dragani of the E-Commerce Times about the case and wondered out loud "Is Yahoo a patent troll?"

What makes someone a patent troll?

I think patent trolls are nonpracticing entities (NPE) that file patent dubious patent infringement lawsuits for the sole purpose of squeezing money out of profitable businesses when there's just a mere possibility that there's an infringement. This seems obvious when there is no active business selling that product that needs protection. I guess if the complaint is valid and there is actual infringement taking place then the accuser is not a patent troll.

Even when there is no valid infringement the lawsuit takes a life of his own. Usually in these huge cases settlement is inevitable.This is so because it will cost more to fight and win than to just settle now.

I wonder if it's a good idea to upset a giant like Facebook? Lawsuits like these often cost millions of dollars and if you're suing somebody that has billions of dollars a few million dollars in a lawsuit isn't such a big deal. Can the giant Facebook brush aside the smaller Yahoo?

Or will the fact that the IPO is pending and the risk factor that those billions of dollars can be lost to Yahoo become a big enough incentive for Facebook to settle? It will be interesting to see what happens. But I believe Yahoo is playing with fire.

Webinar Guest Appearance

mark.toth@na.manpower.com (Mark Toth) — Fri, 16 Mar 2012 15:13:58 GMT

On Tuesday March 20 @ 11:00 Central, I’ll be making a guest appearance on our next ManpowerGroup webinar, entitled Social Media and the Talent Landscape: What HR Needs to Know About Social Media. I’ll be providing some legal commentary, including tips on how to recruit using social media without going to jail and how to [...]

On Tuesday March 20 @ 11:00 Central, I’ll be making a guest appearance on our next ManpowerGroup webinar, entitled Social Media and the Talent Landscape: What HR Needs to Know About Social Media.

I’ll be providing some legal commentary, including tips on how to recruit using social media without going to jail and how to build the perfect social media policy.

Hope you can join us! To register, click here.

Employers Requesting Facebook Access

Fri, 16 Mar 2012 02:06:16 GMT

Employers are more and more reaping the "benefits" of Facebook. They are asking applcants for their FB passwords or for the opportunity to review the applicant's Facebook page. A corrections officer was required to provide his Facebook login information so his superiors could look at his Facebook page as part of his recertification process. The interviewer then read through his page and the pages of his friends and family. See MSN report. He complained about it. But, the Maryland Department of Corrections still asks applicants to voluntarily log onto their Facebook page and let the interviewer look at their pages. Most officers agree to do so because they want to make a good impression.

Student athletes are required by many universities to friend their coaches so the coaches can monitor their FB pages.

A business, Social Intelligence, exists solely to scrape the internet looking for everything said by potential job applicants on the internet for the previous seven years. It assembles a file on the applicants with positive and negative information - looking specifically for racist comments, references to drugs, sexually explicit photos, flagrant displays of weapons or bombs and clearly identifiable violent activity. See CBS News advice column. Suzanne Lucas, the author of the column and also the publisher of the very helpful blog, Evil HR Lady, warns us all to understand that nothing posted on the internet is ever truly private. Just be careful, she warns. Do not post pictures of that wild party at the beach....

Finally! Overlawyered on Facebook

editor@overlawyered.com (Walter Olson) — Thu, 15 Mar 2012 15:50:10 GMT

Great news: thanks to Zach Graves and Cato’s new media department, Overlawyered finally has a working Facebook page with post updates and everything. Please take a moment to Like it now (& Tom Freeland (”Overlawyered celebrates discovery of world’s dumbest Facebook user by joining Facebook”)). Tags: about the site, Facebook Related posts Yes, it has come to this [...]

Tags: about the site, Facebook

New Facebook Decision – Novartis Loses Again

Wed, 14 Mar 2012 18:09:08 GMT

Three weeks ago I ran a story on a New York federal court decision that denied a defendant access to a plaintiff’s Facebook account. Then, two days ago, a Florida federal court decision came out on the same topic. I was about to do a simple update of my original post. But. While this was [...]

But. While this was a different case, the defendant was the same, Novartis Pharmaceuticals. And the subject dealt with the same medical drug, Zometa, and the same medical condition, osteonecrosis of the jaw. And the law firm is the same, Hollingsworth.

The result isn’t much different either. Novartis made broad claims about wanting unfettered access to the Facebook account of the plaintiff that took the drug, hoping no doubt for a no-holds barred fishing expedition through the plaintiff’s life.

The court however, stuck to this little thing called relevance, and shot down 99% of the defendant’s fishing attempt. Defendant’s broad demands were for the plaintiff to:

(1) produce the log-in information to his Facebook account and any other social networking websites he may belong to; and

(2) execute a waiver allowing Defendant to directly obtain these materials held in the corresponding databases;

or, in the alternative, directing Plaintiff to produce all photographs added to any social networking website that depict Plaintiff from the date of the development of his alleged injury, regardless of who posted the photograph.

In Childs v Novartis, Magistrate Judge Joel Toomey wrote that Novartis was clearly overreaching, and said that Hollingsworth’s demand was not “reasonably calculated to lead to the discovery of admissible evidence” and that this was “the proverbial fishing expedition.”

As an alternative to striking down the entire request, the plaintiff had suggested that if there were pictures of the plaintiff actually eating (and therefore using his jaw) that might be discoverable, and that is all that the court granted.

A pattern has emerged. And the question is, will Hollingsworth, having now lost twice (that I am aware of) continue to swing away with its wiffle ball bat?

Monitoring Teenagers' Internet and Social Media Usage

Wed, 14 Mar 2012 04:00:46 GMT

As someone who writes book for teenagers but who also used to prosecute sex crimes, I've been thinking a lot about the arguments for an against monitoring teen usage of the Internet and social media. When I was a prosecutor in the Bronx, social media was just coming onto the scene along with dating sites, chat boards, etc. Even in its infancy, we were fast seeing the dark side of technology as teens were lured to dates with people who weren't who they claimed to be or ran off in the night to rendezvous with someone they'd met on line, often in other states. Sometimes things went very bad and the Internet trail was the only way to find them. Thank God even back then, we had some hackers at our disposal.

Things have only gotten worse and most teenagers are far more technologically savvy than the parents who are trying to snoop. So, should parents do it and if so, what's the right approach?

I haven't been a teenager for a long time, but I remember what it was like. As an adult, I look back on some of the things I did (and I was really a pretty good kid) and I cringe at the possibility that my kids might do some of those things. Even if it was nothing awful, some of the choices I made and risks I took make me look back and think I was awfully lucky nothing bad happened to me. I have many many friends who were not so lucky. And I met many more people who were even less lucky at the DA's office.

As an adult, I look back and think that the trust my parents gave me may have made me overall more responsible than many of my friends, but their intervention in some cases may have been a good thing.

On the other hand, at the time, I would have been livid if my parents were snooping. Just last month, my mom brought me a box of photographs and letters from high school. She'd organized the photos at some point - camp, high school, cross country trip - and the thought that she'd seen these photos or possibly read any of the cards or letters was mortifying! We are talking 25 years ago and it still has the power to make me feel exposed and violated - and that was with nothing in those photos and letters to really be embarrassed about!

My kids are far from being old enough to use the Internet and by the time they are teenagers, I'm sure I will have lots of new things to worry about, but my inclination would be to start with a high level of monitoring and pull it back as you build trust and educate your teen on taking precautions. Even if it's not a matter of trust, some initial monitoring is important to making sure that your child is appropriately securing their information.

For example, I'd want to know that my teen was limiting the information they share on Facebook only to friends and that the people they were connecting with were indeed really friends. I would want to make sure pictures and content were appropriate.

I would also recommend putting some kind of tracking device in any car my teen was driving. These devices allow for alerts if vehicles leave a certain perimeter or if they go over a certain speed limit. I also think trackers are important (both on cell phones and in cars) so that if something happens - if your child is missing or in distress - you have a way to find them.

Just to be clear, I don't believe in hiding any of this from a teenager. Trust has to go both ways and trust and respect are usually rewarded with trust and respect in return. Of course, maybe trust has already been violated and there is a reason to view this differently, but assuming you are starting from a position of trust, I would explain why I needed to monitor content, phones or vehicles and emphasize that trust is not the issue, it's safety.

It's hard as a teenager to look forward to the future and think about everything you might regret some day. It's hard to not want to post silly pictures from parties or share information that you might eventually wish someone couldn't dig up before your interview. It's hard not to go to a party you are invited to even if you don't know the people well and think about the danger you could be putting yourself in. It's hard not to speed when you first get behind the wheel of a car or to be the designated driver.

And it's hard as a parent to not obsess day and night about what might possibly go wrong. To worry about how that picture might affect a job interview or what stranger at a party might hurt your kid - or if they will drink one beer or sneak out to meet someone who contacted them on the Internet. No, its not hard, it's impossible not to worry about every possible thing that could go wrong. And that makes you want to check every single communication, not to pry, but just to make sure they are okay.

All I can offer is that technology can be both of your friends as can honesty and dialog about privacy and safety and respect for boundaries. When I recently had 5 teenagers beta read my forthcoming book, Assimilation, I was astonished at how my respect for their opinions was rewarded with insightful and well thought out comments. They really worked hard to give me honest and specific feedback. And I think they appreciated that I really wanted to hear what they said and make my book better. I think that a respectful conversation about options to allow for liberty while staying safe would be rewarded with the same kind of serious consideration.

What are your thoughts? If your a teenager, what degree of monitoring do you think is appropriate? If you are a parent of a teen, what is or is not realistic for you?

Invasion of Privacy Conviction

rmullman@gpoliakoff.com (Ray Mullman) — Mon, 12 Mar 2012 17:56:11 GMT

Oregon's Gazette Times reported the conviction and sentencing of Nai Mai Chao, a nursing assistant at Regency Pacific Nursing and Rehab Center. She spent only eight days in jail after a jury found her guilty of taking disturbing photos of elderly or disabled patients and posting them to her Facebook wall. A jury convicted Nai Mai Chao of invasion of personal privacy. She was accused of taking graphic photos of patients using bed pans and posting them on Facebook. The pictures date to April 2011. The charge of invasion of personal privacy is a misdemeanor. She can return to working with elderly patients in two years.

Marketers who improperly use company names could face criminal and civil penalties

Mon, 12 Mar 2012 10:02:42 GMT

Anyone running a social media profile on a client's behalf should be very careful when tweeting or posting on the client's behalf. The consequences of careless references to or variations of a company's name could be severe under certain understated provisions of the new Companies Act.

The Companies Act's provisions

Section 32 of the Companies Act deals with "[u]se of company name and registration number" and subsections 3 and 5 are the clauses social media practitioners should be aware of:

(3) A person must not—

(a) use the name or registration number of a company in a manner likely to convey an impression that the person is acting or communicating on behalf of that company, unless the company has authorised that person to do so; or
(b) use a form of name for any purpose if, in the circumstances, the use of that form of name is likely to convey a false impression that the name is the name of a company.
(4) …
(5) Contravention of subsection (1), (2), (3) or (4) is an offence.

The term "person" in the Companies Act "includes a juristic person". In our law there are two basic types of "persons". We have natural persons which are human beings and juristic persons which are corporate entities like companies and close corporations.

What this means is that any person who uses a company's name that suggests that the person is communicating on the company's behalf and isn't actually authorised to do that will be committing an offence under the Companies Act. That is fairly straightforward but subsection 3(b) is not nearly as clear although can be even more problematic for careless marketers. It uses the phrase "form of name" which is only used in this sub-section of the Act. The word "form" is defined fairly extensively in the Oxford Dictionary of English, and includes the following definitions:

the visible shape or configuration of something

a particular way in which a thing exists or appears

any of the ways in which a word may be spelled, pronounced, or inflected

It appears that "form of name" includes both variations of the company name (for example, "Pick 'n Pay" as a commonly used variation of Pick n Pay Stores Limited or Pick n Pay Holdings Limited or "Woolies" as a common reference to Woolworths (Proprietary) Limited or Woolworths Holdings Limited – assuming you know which one you are referring to) and it may even include variations of the company's trade marks, such as logos, and other representations of the company's name. Assuming this is how the clause will be interpreted, subsection 3(b) criminalises a variation of a company's name which conveys "a false impression" that the variation "is the name of a company". The idea here may be to ensure that company's names and branding is accurately and reliably conveyed to the public and the risk of confusion minimised.

Section 218 deals with "[c]ivil actions" (as opposed to the criminal offences that a violation of section 32 would constitute) and subsections 218(2) and (3) state the following:

(2) Any person who contravenes any provision of this Act is liable to any other person for any loss or damage suffered by that person as a result of that contravention.
(3) The provisions of this section do not affect the right to any remedy that a person may otherwise have.

These two subsections in section 218 introduce specific liability for any "loss or damage" caused by "[a]ny person" and suffered by "any other person" and doesn't exclude whatever other remedies "a person" may have in law. This clause's scope is pretty broad, may be open to constitutional scrutiny, and opens the door to civil liability in the form of a financial sanction flowing from the contravention of the Companies Act in addition to whatever other remedies may be available.

What does this mean for marketers?

Drawing all of this together, a marketer or other social media practitioner could find him or herself being charged with a criminal offence and sued for monetary damages for either using a company's name in such a way as to falsely suggest the marketer or practitioner is authorised to represent the company concerned or where the marketer or practitioner uses a "form" of a company's name that is not the company's actual name and, instead, falsely creates the impression that it is. This sort of issue could easily arise in the manner in which a brand's Twitter or Facebook pages are operated (both how they are set up and presented to the public, fans and followers as well as what is published in those streams) as well as out of a marketer's or practitioner's efforts to promote the brand.

One specific challenge tweeting under a brand's name without drawing a distinction between the person doing the tweeting and the brand's official communications where the tweeter posts updates that don't fall within the tweeter's mandate (for example, a personal comment that isn't sanctioned by the company). Another is using an unauthorised "form" of a company's name in a Facebook Page update or blog post, for example. These sorts of mistakes can be made but they potentially carry severe consequences (an offence could mean a fine or imprisonment not exceeding 12 months, or both). Given the definition of "person", agencies that operate social media profiles can also find themselves in trouble.

Managing these risks

Managing these risks and still diligently promoting a brand can be accomplished. Agencies must have clearly defined roles and parameters and these must be effectively communicated to their staff and compliance with these restraints must monitored. This means being specific with clients in agreements and communications regarding the agency's use of a client's brand and the manner in which the agency's staff will communicate with fans and followers on the client's behalf. Agency staff should also draw clear distinctions between posts intended to be associated with the client and its brand, on the one hand, and posts which are not. There should be no confusion between a company or its brand, on one hand, and the people promoting it behind the scenes.

Appropriate risk management steps should be taken from the start and maintained on an ongoing basis, taking into account changing circumstances, instructions and feedback received from the public, the client and other relevant stakeholders. Not making the effort to better manage these risks could result in more serious consequences down the line than the upfront cost of developing and implementing the appropriate framework.

IL - Ex-ESDA officer (Kevin T. Zebell) guilty in Naperville child sex case

Wed, 07 Mar 2012 04:07:09 GMT

Kevin T. Zebell

Original Article

03/06/2012

By BILL BIRD

A onetime member of the Romeoville Emergency Services and Disaster Agency has been sentenced to jail and ordered to register as a sex offender, after being convicted of trying to arrange a sexual rendezvous last summer with a teenage girl from Naperville.

Kevin T. Zebell pleaded guilty in Will County Circuit Court in Joliet to felony charges of indecent solicitation/aggravated criminal sexual abuse and grooming, according to court records.

Zebell, 33, was sentenced Thursday to 180 days in Will County Jail, records showed. He has spent 204 days in the jail since being arrested, and with day for day credit for good behavior, has completed that term.

He also was placed on 2 1/2 years of intensive probation, records indicated. Zebell also must register as a sex offender and provide a sample of his DNA, which will be entered into the state’s sex offender database, according to records.

Zebell was arrested Aug. 10 following an investigation by the Naperville Police Department’s High Technology Crimes Unit, with assistance from Lockport police and the Will County sheriff’s office.

Naperville police Detective Rich Wistocki said the probe began last July with information provided by a man who lives with his family on Naperville’s southwest side.

The father was monitoring his 16-year-old daughter’s Facebook account, Wistocki said in August. “He observed some inappropriate messages from Mr. Zebell ... that were sexual in nature,” Wistocki said.

Detectives then began monitoring Zebell’s online conversations with the girl, Wistocki said. Zebell ultimately arranged to meet her at a business in Lockport.

Wistocki said Zebell went there expecting to meet the girl. He was instead taken into custody by eight or nine members of the Naperville, Lockport and Will County sheriff’s police agencies, Wistocki said.

Zebell in 2003 served as a sergeant with the Emergency Services and Disaster Agency in Romeoville.

Court documents showed he was arrested at least 26 times between 1996 and 2010 on traffic-related charges in Will, DuPage and Kane counties, including a January 2010 arrest for drunken driving in Crest Hill. He was sentenced to 60 days in jail and ordered to perform 240 hours of community service work after being convicted in that case, records indicated.

UK Decision Paves the Way for Service of Legal Claims via Facebook

Tue, 06 Mar 2012 16:20:14 GMT

The English High Court recently confirmed that legal papers can now be served through the social networking site, Facebook. On 21 February of this year, Justice Nigel Teare granted permission to a lawyer representing a pair of investment managers to serve a legal claim via Facebook in circumstances where the defendant was proving difficult to locate. The lawyers for the plaintiffs, having made enquiries, were able to satisfy the Court that the Facebook account belonged to the defendant and that the defendant was in the habit of checking it.

This is not the first time that social media sites have been used for such a purpose. In 2009, the English High Court permitted a lawyer to use Twitter in order to serve an injunction to a Twitter user and Facebook has been used in the past in the UK for the purpose of issuing a court summons to an otherwise elusive debtor. Similarly, social media sites have been used to serve claims in Australia and New Zealand ever since the landmark ruling in December 2008 of the Australian Territory Supreme Court in Canberra, where the Australian courts granted permission to a Canberra based law firm to deliver legal papers online via Facebook to a couple, after ascertaining that the profiles found by the lawyers did indeed belong to the couple in question. In granting permission to use the social networking site, the judge directed that the legal papers be sent by private email so that other people visiting the page could not read their contents.

It has been reported that this is the first time this method of service has been approved at such a high level, namely in a case involving a £1.3m claim before the English High Court.

Court Sides with Facebook, Finds Social Networking "Experience" Website Violated CAN-SPAM and Other Data Security Statutes

blogs@foleyhoag.com (Foley Hoag) — Sun, 04 Mar 2012 16:56:42 GMT

by Brian P. Bialas

In a case brought by Facebook, a U.S. district court recently concluded that a website that offered to integrate multiple social networking accounts into a single social networking “experience” violated the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”), the Computer Fraud and Abuse Act (“CFAA”), and California Penal Code § 502. Facebook, Inc. v. Power Ventures, Inc., 2012 WL 542586 (N.D. Cal. Feb. 16, 2012).

Power Ventures, which operated the “experience” website, began a “Launch Promotion” in December 2008 that promised users the chance to win $100 if they successfully invited and signed up new users to Power Venture’s website, www.power.com. As part of the promotion, Power Ventures provided participants with a list of their Facebook friends, obtained by Power Ventures through Facebook without Facebook’s authorization, and asked each participant to select which of his or her friends should receive a Power Ventures invitation. The invitations sent to participants’ Facebook friends appeared to come from Facebook, as they used an “@facebook.com” address, not a Power Ventures address.

Facebook sued Power Ventures and its CEO, and moved for summary judgment on the grounds that Power Ventures: (1) sent misleading commercial emails through Facebook’s network in violation of the CAN-SPAM Act; and (2) utilized technical measures to access Facebook without authorization in violation of the CFAA and California Penal Code § 502.

The court held for Facebook and against Power Ventures on all of the claims. First, the court concluded that Power Ventures was liable under the CAN-SPAM Act, which makes it unlawful for a person to initiate the transmission of a commercial email that contains header information that is misleading or false. The court first ruled that Facebook had standing to sue under the statute because Facebook expended significant resources to block Power Ventures’ prolific spamming, which included over 60,000 separate instances. Next, the court determined that Power Ventures “originated” misleading emails under the Act and was liable, even though the Facebook server actually sent the messages. In particular, Power Ventures was liable because it: (1) created a “Launch Program” that caused Facebook’s server to automatically send emails with a “@facebook.com” email address, (2) imported Facebook users’ friends to a guest list, and (3) authored the text of the message to the friends. Even if the Facebook users themselves could be said to have “initiated” the messages, Power Ventures initiated them as a matter of law by procuring the users to authorize the messages by offering monetary awards.

The court also concluded that Power Ventures violated California Penal Code § 502, which prohibits a person from (1) knowingly accessing and without permission taking, copying, or using any computer data, system, or network; (2) knowingly and without permission using or causing to be used computer services; or (3) knowingly and without permission causing to be accessed any computer, computer system, or computer network. Power Ventures was liable because it circumvented technical barriers to access Facebook’s site. Although Power Ventures did not take additional steps to circumvent individual IP blocks imposed by Facebook, it designed its system to render such blocks ineffective. Similarly, Power Ventures was liable under the CFAA because it “intentionally accesse[d] a computer without authorization” and thereby obtained “information.” 18 U.S.C. § 1030(a)(2).

This case simply shows that if you manipulate another’s website or server, even if you’re not technically “hacking,” you might be held civilly liable (especially if you’re manipulating the server of a huge company like Facebook). Technical defenses (e.g., Facebook actually sent the emails) may not get you off the hook.

California Federal Court Grants Summary Judgment For Facebook On Its CAN-SPAM Act, Computer Fraud and Abuse Act, And Penal Code Section 502 Claims Against Social Media Aggregator

rmilligan@seyfarth.com (Robert Milligan) — Thu, 01 Mar 2012 00:01:20 GMT

By Robert Milligan and Jeffrey Oh

For the past three years, social media platform Facebook has pursued legal action against social media aggregator Power Ventures ("Power") over what it has viewed as a blatant violation of state and federal law. Filed by Facebook in December 2008, the suit alleges violations by Power of the CAN-SPAM Act in addition to the Computer Fraud and Abuse Act ("CFAA") (18 U.S.C. § 1030) and the California Comprehensive Computer Data Access and Fraud Act (California Penal Code § 502). Facebook generally alleged that Power accessed its website in an unauthorized manner, and then utilized this unauthorized access to send unsolicited and misleading commercial emails to Facebook users.

On February 16, 2012, United States District Chief Judge James Ware of the United States District Court for the Northern District of California granted Facebook’s Motions for Summary Judgment on all three counts. The Court's decision is potentially significant and groundbreaking for social media companies, like Facebook, and social media aggregators, like Power Ventures, concerning data collection by aggregators that violates social media companies' terms of service. The Court also asked for additional briefing on the amount of damages Facebook should receive and the individual liability of Power's CEO.

The decision also highlights issues regarding social media sites and spam, as well as the more significant issue of user control of their own data on social media sites. One commentator has remarked that the natural question that begs to be asked is "if Facebook users own their own data, why can't they choose the way it's accessed?" Another commentator has stated that the upshot of the decision is that "if users want to access data, they have to do so on Facebook’s terms, and may not do so using a third party tool that is not a part of Facebook’s developer platform. "

Power Ventures

Launched in August 2008, Power Ventures is a web service designed to offer users of multiple social platforms a one-stop solution for accessing their networks. Using login credentials disclosed by its users, Power gathers data from various sites, such as Facebook, and aggregates it on its own site. For its part, Facebook offers its own application programming interface (API) which allows third-party developers to use Facebook user data in their applications. However, after determining that the Facebook API did not include access to all of the relevant user data they wanted, Power instead allegedly used their users’ login information to access and save cached versions of Facebook pages, scraping these webpage snapshots for data. Additionally, in a “Launch Promotion,” Power allegedly gathered the names of its users’ Facebook friends and offered a chance at a $100 prize in return for agreeing to send them an invite to Power’s service. The subsequent invitations to join were allegedly sent through Facebook’s message service and used a “@facebookmail.com” address instead of a Power.com address.

CAN-SPAM Act

Passed in 2003, the CAN-SPAM Act makes it “unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading .” 15 U.S.C § 7704(a)(1). Facebook argued that Power initiated misleading messages to its users inviting them to join Power’s service. Coming from the “@facebookmail.com” address, the message allegedly initiated by Power came from Facebook's servers and contained no return address where Power could be reached, nor any header information identifying Power as the initiator of the message.

As an Internet access service provider (IAS provider), Facebook is permitted to assert a cause of action (and obtain statutory damages) if it is able to establish standing under the CAN-SPAM Act, i.e. was Facebook "adversely affected" by the alleged violations. Testifying to this essential element, which the Court credited, Facebook documented its expenditures in response to Power’s actions, including associated legal fees as well the cost of increased technical measures to attempt to prevent the spamming.

The Court noted that Power's spamming activity was ongoing, prolific, and did not stop after requests from the network owner. The Court reasoned that to hold that Facebook originated the emails merely because Facebook servers sent them would ignore the fact that Power intentionally caused Facebook's servers to do so, and created a software program specifically designed to achieve that effect. The Court also reasoned that the emails did not contain any return address or any address anywhere in the email that would allow a recipient to respond to Power. Thus, the Court concluded that the header information did not accurately identify the party that actually initiated the email and the header information was materially misleading. Consequently, the Court ruled in favor of Facebook, finding Power to be in violation of the CAN-SPAM Act.

Computer Fraud and Abuse Act & California Penal Code § 502

The Computer Fraud and Abuse Act is a federal law designed to, among other things, combat hacking, cracking of computer systems, and other computer-related offenses. In this case, Facebook sued Power under a subsection of the act (18 U.S.C. § 1030(a)(2)(C)) which provides that it is unlawful to “intentionally access[] a computer without authorization or exceed[] authorized access, and thereby obtain[]…information from any protected computer.” Similarly, Facebook also asserted a claim under California Penal Code § 502, a state statute that aims to prevent entities and individuals from “knowingly and without permission” accessing and taking, copying, or making use of data from computers, computer systems, or computer networks. Though Power gained access to Facebook pages using login information provided by its users, the automated process by which Power obtained user data is a violation of Facebook’s terms of use. As a result, Facebook argued that Power did not in fact have authorized access (under Facebook’s own terms of use) to the user profiles it gathered, or the subsequent data therein, and was in violation of both § 502 as well as the CFAA.

While the Court did not agree that simply violating a network’s terms of use was enough to warrant the distinction of “without permission” under § 502, it established a new standard for unauthorized access by distinguishing access which “circumvents technical or code-based barriers in place to restrict or bar a users’s [sic] access.” In support of this additional requirement, Facebook detailed its efforts to block Power’s IP address and access, as well as the adjustment of Power’s software to circumvent this measure. Additionally, Facebook pointed to emails by Power’s CEO, as well as transcripts of discussions with his staff in which the CEO warns them of Facebook’s potential countermeasures and the need to not be detected. Given the Power CEO's anticipation of potential blocks to Power’s methods, as well as Power’s actual circumvention of Facebook’s IP blocks, the Court ruled that Power did in fact access Facebook’s servers without permission and was in violation of California Penal Code § 502. Similarly, after crediting Facebook's showing of Power's violation of § 502 and considering Facebook’s costs to attempt to thwart Power's unauthorized access, which were in excess of the $5,000 minimum damage or loss threshold mandated by 18 U.S.C. § 1030, the Court also found Power to be in violation of the CFAA.

Conclusion and Takeaways

In response to the decision, interested parties have voiced differing views. Facebook's lead litigation counsel has been quoted by Bloomberg News as saying: "We will continue to enforce our rights against bad actors who attempt to circumvent Facebook’s privacy and security protections and spam people.” The EFF has criticized the decision stating that the case "demonstrates the difficulties facing those who seek to empower users to interact with closed services like Facebook in new and innovative ways."

Though successful in proving that Power accessed its site without permission, Facebook’s victory may be bittersweet for the social networking giant. Previously, Facebook relied heavily on its incredibly robust terms of use to safeguard itself from what it viewed as abuse of its service. Now, given the Court’s standard for what constitutes access “without permission,” Facebook, as well as other Internet based services, must focus even more heavily on incorporating protective measures into its website’s code and allocate more resources to promptly respond to threats from outsiders like Power. Monitoring a network the size of Facebook’s for unauthorized access may be a daunting technical task and the security investigation costs significant, yet failing to do so may cost even more to a service dependent upon users who may expect privacy and security. Companies that traffic in secured information should be sure to invest in comprehensive protective measures designed to keep unauthorized users out, whatever their purpose. Crafting a comprehensive terms of use that explicitly outlines what is acceptable is still important to protecting a company from misappropriation or abuse as it helps to establish clear boundaries for authorized access. However, while a strong terms of use is necessary, it is not sufficient to gain the full protections of the CFAA and California Penal Code § 502 for social networking services, such as Facebook, at least acccording to this Court.

Teens and Risk of Suicide | Do You Know Where Your Children Are?

Sun, 26 Feb 2012 19:43:56 GMT

The risks to teens today must be twenty times the risk back then. A recent New York Times article pointed out that parents and friend of teens today have option to access an alert that may let them know where their children "are" today. Teens today are subject to many more stressors than teens in my youth. Depression, bullying, lack of self-esteem . . . all kinds of things are going on that make it important to stay in touch with where teens "are" -- not geographically, but emotionally.

Letter bomb trial : Prosecutors concerned alleged ‘Facebook spat between lawyers’ may be seen as ‘attempt to undermine accused legal representation’

Sun, 26 Feb 2012 12:09:49 GMT

Neil Lennon, Trish Godman & ‘top QC Paul McBride were targets of viable letter bombs. SERIOUS CONCERNS have been privately expressed by Crown Office insiders regarding an alleged FACEBOOK spat reported in national newspapers involving two advocates from the MacKinnon Advocates stable, one a high profile 'Top' QC, Paul McBride, and the other, Victoria J Young who narrowly escaped a criminal prosecution for stalking. Both advocates are involved (Mr McBride as a victim, Ms Young representing the accused) in the trial due to take place next week at the High Court in Glasgow of two men accused of plotting to murder Mr McBride QC, Celtic boss Neil Lennon and ex-MSP Trish Godman by means of sending “Viable” parcel bombs to the Celtic manager and the two high-profile fans of the Glasgow club.

Reports that a Faculty of Advocates investigation into allegations one of the advocates representing the accused in the trial, Victoria J Young who narrowly escaped a criminal prosecution for stalking after being charged by Strathclyde Police had “slagged off” one of the alleged victims of the letter bomb murder plot "top” QC Paul McBride, via the social network website FACEBOOK have so far been DENIED by senior figures from the FoA, however it now transpires insiders at Scotland’s prosecution service have expressed concern the spat between the two QCs, one a victim and the other, representing one of the accused, “may well have damaged or undermined the accused’ legal representation” leading to concerns over the progress of trial, due next week..

Speaking in the earlier report a Faculty insider who wished to remain anonymous said there was concern the allegations may have “an alternative agenda” however the insider did not wish to elaborate further.

It is now generally accepted Scotland has a significant sectarian problem which has grown so bad, the Lord Advocate authorised Crown Office to destroy its statistics on hate crimes against Catholics in case the predominantly EU found out, as reported HERE

BBC News reported on the parcel bombs incident : The first suspect package was intercepted by the Royal Mail in Kirkintilloch, East Dunbartonshire, on 26 March and was addressed to Mr Lennon at Celtic's training ground in nearby Lennoxtown. Two days later a device was delivered to Labour politician Ms Godman's constituency office in Bridge of Weir, Renfrewshire. Her staff were suspicious of the package and contacted Strathclyde Police. The third package was addressed to Mr McBride at the Faculty of Advocates in Edinburgh. It is believed to have been posted in Ayrshire before being found in a letter box by a postal worker on Friday and taken to a Royal Mail sorting office in Kilwinning, where police were contacted.

Commenting on the incident, Scotland's First Minister Alex Salmond said: "Let us be quite clear - there is a major police investigation under way to ensure that the individual or individuals concerned are identified and apprehended, and then brought to book with the full force of the law. We will not tolerate this sort of criminality in Scotland, and as an indication of the seriousness with which we view these developments the Cabinet sub-committee met last Saturday to ensure that the police investigation has every possible support to come to a successful conclusion."

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