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Legal Implications of Using Social Media
CLE Lunch’n Learn
David S. Curcio Marcel R. HobizalPartner Director of Training & Support ServicesJackson Wallker L.L.P. Equivalent DATA
713-752-4200 [email protected] [email protected]
Copyright © 1998 - 2008 Digital Discovery Corp. All rights reserved
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“Forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communications to share information, ideas,personal messages, and other content (as videos)”
social media. 2011. In Merriam-Webster.com.
Retrieved October 10, 2011, from http://www.merriamwebster.com/help/citing.htm
What is Social Media?
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Linkedin = 100+ million users 44.2 million users live in the United States.
Facebook = 800+ million users Each month, 30 billion pieces of content are generated and
shared. In May 2011, Americans spent 53.5 billion minutes on
Facebook.
Twitter = 200+ million users Each day users are sending 200 million tweets per day.
You Tube = 120+ million videos Users upload 35 hours of video every minute.
WordPress = 384+ thousand users In one day, 762+ thousand new posts and 803+ thousand
comments.
Foursquare = 10+ million users In 2010, 3400% growth.
The Social Media Numbers:
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People will share practically their entire life online, no matter how mundane.
Sharing Practically Everything….
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Social Media can provide lawyers with a digital treasure of information.
Sharing Practically Everything….
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Lawyers rely on a variety of social media to connect, collaborate and engage online as part of their professional and personal lives.
1/3 of corporate counsel and close to ½ of private sector lawyers who participate in social networks for professional purposes do so on a least a daily basis.
The majority of lawyers who participate in professional online communities report doing so once per week or more reported using social media in litigation.
6% of lawyers participate in microblogging (Twitter, etc.) but roughly 70% of those who do, report doing so at least once per week.
1/3 of corporate counsel and close to 1/2 of private practice lawyers who read and add comments or ratings to articles, blogs and other online content do so on at least a daily basis.
Lawyers who use online content sharing (SlideShare, Flickr, YouTube, etc.) do so weekly or less.
Martindale.com. (2009). Survey Reveals Growth in Online Social Networking by Lawyers Over the Past Year. Retrieved October 11, 2011, from http://www.lexisnexis.com/community/lexishub/blogs/legaltechnologyandsocialmedia/archive/2009/09/18/survey-reveals-substantial-growth-in-online-social-networking-by-lawyers-over-the-past-year.aspx
Frequency and Type of Use
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“The Internet isn’t written in pencil, Mark. It’s written in ink.”
Erica Albright (Rooney Mara) to Mark Zuckerberg (Jesse Eisenberg), “The Social Network” (2010).
What type of Social Media information is available?
Incriminating photos Incriminating statements or wall posts. Status updates Mood indicators Lists of friends Likes and Dislikes Blog Posts
Online Social Media Information
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Kevin’s Family Emergency
Online Social Media Example
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Kevin’s Family Emergency
Online Social Media Example
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Kevin’s Family Emergency turned out
to be a Halloween Party in
New York.
Online Social Media Example
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What type of Background information is available? Up-to-date contact information includes address history, phone
numbers, cell phone numbers, email addresses and P.O. Box. Names and alias used, household income and companies
worked. Relatives, household members, neighbors and associates. Marital, family status, marriage history and divorce records. Nationwide criminal record check and sex offender check. Bankruptcies, liens, judgments, court records: dates, parties,
lawyer names for both parties, verdicts. Criminal and background records: police files, arrest and jail
records. Age and DOB – birth records and hospital records. Property and real estate records. Business ownership and professional lists.
Online Background Information
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How do obtain the information? Profiles and content that can be publically viewed are fair game. Discovery requests to the party. A motion compelling the user to execute a consent form permitting
the discovery.
Free Tools & Solutions: Addictomatic.com - aggregates RSS feeds and specific terms Blogpulse.com - search for blog posts by keyword Boardreader.com - search mulitple message boards and forums Omgili.com - focuses on “many to many” user generated content Tweetbeep.com - track mentions of your brand on Twitter in real
time Twitrratr.com - rates mentions of your search term (+, neutral or -) Tweetdeck.com - aggregates Twitter search and lifestreams
Paid Tools & Solutions: Radian6, BuzzMetrics, Visible Technologies, Techrigy SM2,
Converseon, Collective Intellect, Trackur and BrandsEye.
Obtaining Social Media Information
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Free Tools & Solutions: ZabaSearch.com – find anyone’s home address(es) & phone
number Pipl.com - aggregates information about a person Wink.com – search several social sites at once Zoominfo.com – search for employment results Google.com – use advanced Google techniques for better results People.yahoo.com – Yahoo’s people finder Peoplefinder.com Spokeo.com – organizes vast quantities of white-pages information 411.com Whowhere.com
Paid Tools & Solutions: Intelius – http://www.intelius.com PeopleFinder.com: http://www.peoplefinder.com Acxiom – http://www.acxiom.com Spokeo – http://www.spokeo.com
Tracking Down Anyone Online
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Are public postings on social media sites private?
A public posting on a public site is generally not private. See Yourself on Addictomatic.com
Are private pages on social media site private?
With whom have you shared it? With whom have they shared it? Could be “reasonably calculated to lead to the discovery of
admissible evidence” Easily authenticated.
Social Media and Privacy
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ECPA: Electronic Communications Privacy Act18 U.S.C. § 2510-2522
FSCA: Stored Communications Act18 U.S.C. §§ 2701 to 2712
NLRA: National Labor Relations Act29 U.S.C. § 151–169
CDA: Communications Decency Act47 U.S.C. § 230
DMCA: Digital Millenium Copyright Act 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C.
§ 4001
Other: Similar state laws, FTC Guidelines, SEC Regulations
Applicable Laws
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SOPA/PIPA DOA?
• Cease and desist orders• Notice/Counternotice• Preventive Measures by internet providers• IP Attache in every embassy
Inapplicable(?) Laws
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LawyersInvestigation of WitnessesInvestigation of JurorsNew/Old Causes of ActionResearch tools
Judges and JurorsBlogging and updatingResearching
EmployersBackground checksHarassment
Legal Implications
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Confidentiality and Privacy Concerns
Improper DisclosuresRevealing Client Secrets Revealing Case Strategy
Stupid DisclosuresAngering BossesAngering Clients
Deceptive ConductMarketingInvestigatingInadvertent Attorney-Client Relationship
Lawyer’s Personal Use of the Internet
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Party/Witness Investigation Are they really injured? Are they “friends” with other parties?
Research Use of trademarks Free alternatives
Litigation Libel by tweet (Publication) Duty to tweet? (University of Virginia shooting)
Client Contact Access to files Shared document review
Lawyer’s Professional Use of the Internet
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Appearance of Unprofessionalism
Friending Lawyers
Fundraising
Commenting on Pending Matters
Campaigning
“Private” Postings
Judge’s Use of the Internet
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Sworn to secrecy, but…
Disclosure of trial testimony and deliberations “I was only tweeting” Relying on “Friend’s” comments
Contact with lawyers and witnesses Friend requests Searching for biographies
Researching issues in the case Scientific issues Media reports
Jurors’ Use of the Internet
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Advertising and marketing Employee forums Consumer forums
Prescreening prospective employees Background check Facebook check
Monitoring current employees Blogs, posts and tweets Liability for monitored comments Liability for privacy violations
Employers Use of the Internet
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= Fired!
Delta Uniform + Inappropriate Poses
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Use tools to find social media evidence but remember to
know where the lines are drawn on ethics and
discoverability.
Treat all your posts as public and permanent.
Know your employer’s policies and restrictions.
Keep informed on latest laws and proposed laws.
Conclusion
