Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

Hitwise recently reported that 1 in every 4 pageviews in the US is on Facebook, and also incredible is Facebook’s claim that people spend over 700 billion minutes per month on Facebook. Astonishing growth made even more amazing by realizing that the second place, and far behind Facebook, is YouTube with 6.39% of US pageviews and third place Google at 5.32% of US pageviews! To make Facebook’s 25% of US pageviews even more significant is that comScore reported that Facebook’s growth in the past year was 55% over the preceeding year. Pretty heady stuff, but the biggest questiona of all are- where are we headed with Social Media and will the growth continue at this kind of pace?

Get Ready for Interesting Litigation

It’s not hard to conclude that the more Social Media activity, the more likely that communications between individuals will be evidence in lawsuits. Just one more reason that individuals who participate in Social Media should be thoughtful about what they post of Social Media sites, since items posted on the Internet have a way of surviving forever as Google CEO Eric Schmidt and some people may decide they need to change their identifies because of what they’ve said and on Social Media sites. Otherwise I recommend this advice – Don’t say anything on a Social Media site that you wouldn’t want a jury to see. If jury hears something once they may believe, if a jury hears something said twice they start believing it’s true, but if a jury sees a posting on a Facebook they will believe it’s true!

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Last week I posted a guest blog on Karl Bayer’s Blog about Dispute Resolution concerning Michael Geigerman’s ADR program at Washington University School of Law on October 29, 2100.

Michael Geigerman was the Moderator for a half day seminar at the Washington University School of Law regarding complexities created by eDiscovery and Social Media on October 29, 2010. Mr. Geigerman is a full-time Mediator in St. Louis, the Managing Director of United States Arbitration & Mediation Midwest, Inc. (USA&M Midwest Inc.), and is an Adjunct Professor at the Washington University School of Law where he runs the ABA Negotiation and Mediation Competitions. USA&M Midwest Inc. and the Washington University Law Dispute Resolution Program regularly present the Missouri Best Practices Seminars, and the proceeds from the Seminars are all donated to charities.

eDiscovery: Ethical Considerations, ADR and Social Media

I was honored to speak at this Seminar and my speech included a discussion regarding how Social Media is creating an ocean of electronic evidence which impacts all litigation. As a consequence, Mediators and Arbitrators must be aware of eDiscovery in every case, and also be alert to how Social Media affects the litigants. Obviously Social Media communications impacts ethical considerations for lawyers and neutrals alike, and being thoughtful about what we say in emails and post on Facebook or LinkedIn is essential in today’s environment. Also I included a discussion about the use of Mediation Conferences directed at managing eDiscovery called eMediation for which I credit my good friend Allison Skinner, who is a full time neutral and continues to teach eDiscovery at the University of Alabama School of Law as an Adjunct Professor. Finally, I discussed my experiences as a Special Master in eDiscovery disputes for more than 20 years.

eDiscovery Panel Discussion

Following my remarks about Social Media and eDiscovery I was the Moderator of a distinguished panel including US District Judge E. Richard Webber, Eric Holland, and Kevin Fritz who responded to the audience and discussed ADR issues concerning eDiscovery, Social Media, and Special Masters. Since this Seminar was a sell-out with standing room only, you can image there was a lively and candid discussion about Rule 26(f) conferences, eDiscovery, ADR, and specific active cases in metropolitan St. Louis.

Mandatory Mediation Conferences in Missouri

In 2009 Mr. Geigerman was appointed by the Missouri Supreme Court to the Commission on ADR and the Seminar included a panel discussion about revisions to ADR Rule 17 which would make Mediation Conferences mandatory in Missouri. Mr. Geigerman led a discussion by a panel of ADR Commission members including Professor Karen Tokarz (Washington University School of Law), Richard Sher, and Maurice Graham. Generally the Commission members and the audience were very enthused by the prospect of making Mediation Conference mandatory for disputes over $25,000.

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The Electronic Privacy Information Center (EPIC) issued its second annual privacy report card with lower grades of “C for consumer data protection efforts and a D on civil liberties.” Mark Rotenberg, executive director of EPIC said "Our bottom-line assessment is that with respect to privacy, things are getting worse.” The EPIC is pleased that President Obama’s first Cyber Czar Howard Schmidt (who was appointed in December 2009) is working with privacy groups. EPIC’s report is critical of the Federal Trade Commission (FTC) which is now reevaluating US privacy laws in the wake of Google’s Buzz disaster and alleged privacy violations by Facebook. Clearly everyone needs to keep an eye on how the Obama administration manages privacy, and now that the Democrats do not control both houses of Congress it will be interesting to see how law makers deal with privacy.

New Congress and Privacy

As matter of fact after the November 2, 2010 election the Washington Post reported  that “Rep. Joe L. Barton (Tex.), ranking GOP member of the House Energy and Commerce Committee, signaled the legislative push in a statement about his correspondence with Facebook executives on privacy issues…I want the Internet economy to prosper, but it can't unless the people's right to privacy means more than a right to hear excuses after the damage is done.” Reports of data breaches continue and merely needs to check out the FBI’s websites of Cyber Crime Stories which clearly impact us all. 

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Google settled a dispute about rejecting ads with the French Competition Authority including a 3 month notification period for the future when rejecting ads. Navx bought ads from Google to help drivers avoid speeding tickets by providing “online maps pinpointing the location of radar and camera systems the authorities use to crack down on speeding on French roads.” Because radar detectors are illegal in France Google rejected Navx's ads, and Navx filed a lawsuit in court for 7 million euros ($9.7 million) alleging damages. As part of the settlement Google “pledged to overhaul its rules and procedures for blocking certain advertisers from buying “sponsored links.” This good news since Google is adopting these new ad policies worldwide.

Google Accounts for 90% French Searches

Even better news for Google was that even though Google accounts for 90% of all online searches in France the French Competition Authority made “no finding of dominance or monopoly abuse.” However this could change and Google should be mindful of abusing its success. If Google accounted for 90% of the searches in the US it’s doubtful that the US government (FTC or Justice Department) would find no dominance or monopoly abuse. After all, the Justice Department pursued antitrust claims against Microsoft in the 1990s because of Microsoft’s market power and tying Internet Explorer to the Windows operating system (my 4th Big Bang of the Internet). There have been rumblings about Google’s potential anti competitive behavior since President Obama took office.

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Let’s see a show of hands- do you read Terms of Service? Privacy Policies? Or Click Agreements? I routinely ask audiences this question and rarely do I ever get any hands raised. My recent Technology Law column in eCommerce Times entitled “Who Reads Terms of Service, Privacy Policies or Click Agreements?” identifies many legal issues concerning website contracts. Every fall since 2000 I’ve taught a course on theLaw of eCommerce at the SMU Dedman School of Law and every fall I find that virtually none of my students have ever considered reviewing Terms of Service, Privacy Policies, or Click Agreements. But by the end of the semester they routinely review these contract terms. I was pleased to see a former student from 2004 recently who told me that he regularly reviews these contract provisions. The irony of not reviewing these contract provisions is that people have no idea what legal rights and privacy they may be giving up.

FTC and Privacy

TheFederal Trade Commission regulates privacy in the US and if a website does not have a Privacy Policy that’s okay but if there is a Privacy Policy the website must follow its promises to website visitors. Since so few people review Terms of Use, Privacy Policies, and Click Agreements the FTC is considering making changes to US privacy laws particularly regarding the Children’s Online Privacy Protection Act. However in the meantime until the US privacy laws are changed, websites have pretty much a free hand since no seems care.

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