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

LinkedIn reports that the wealthiest investors have adopted Social Media regularly with about 50% using LinkedIn, and “72% use Facebook and 27% use Twitter.” Forrester Research describes about “40 million” individual investors as Mass Affluent who have assets of $100,000 to $1 million excluding the value of their homes and these “Mass Affluent use social media as an educational resource for financial information and are greatly influenced by what they learn.”

The LinkedIn report explains how the Mass Affluent use Social Media for professional purposes:

• 1 in 2 use social to CONNECT with professionals.
• 1 in 3 use social to CONSUME professional content.
• 1 in 4 use social to CREATE professional content.

This LinkedIn Report should be a message to all professionals that the use of Social Media will assist in communicating with the wealthiest among us.

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Ownership of Social Media content and contacts got a little clearer by a court ruling. But in the case of LinkedIn users, they give LinkedIn an irrevocable and perpetual license to everything posted. That means LinkedIn has an ownership claim to everything posted, as a result LinkedIn really has an ownership claim to all content and connections.

Nevertheless on March 12, 2013 US District Judge Ronald L. Buckwalter ( Eastern District of Pennsylvania) ruled that Dr. Linda Eagle’s former employer Edcomm did not own Dr. Eagle’s LinkedIn content and connections rather they “belonged to Eagle alone and she was individually bound by the User Agreement.”

Although Dr. Eagle won the case, but she got no damages. To learn more about Dr. Eagle’s lawsuit and Judge Buckwalter’s ruling please read my eCommerce Times April 2013 column entitled “Who Gets LinkedIn When an Employee Is Kicked Out?”

Based on Dr. Eagle’s case we will likely see contracts between employers and employees that spell who owns Social Media content and connections, which contracts will likely be tested in courts.
 

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Few of the +150 million users realize that since LinkedIn began its operations that everyone gives an unrestricted license to everything posted. This may be a surprise since so few people ever bother to read Terms of Service (ToS) on any website or click agreement. Here is the license in LinkedIn’s User Agreement that all LinkedIn users must agree to before using LinkedIn which has not changed much since 2003 when LinkedIn began its operations:

…you grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, …, any information you provide, directly or indirectly to LinkedIn, including,..

Just for clarity sake - “irrevocable” means the license cannot be terminated and “perpetual” means forever. So users should be mindful of what they post and messages they send using LinkedIn since LinkedIn has a license to all:

• email messages
• pictures
• messages to and from Connections
• recommendations
• PowerPoints posted
• EVERYTHING !!

Were you ready for the details of LinkedIn’s license? Most people are shocked to learn that LinkedIn has this license, so maybe people should take more time to read the ToS on websites so they would not be surprised.
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LinkedIn boasts +120 million members who all agree to be bound to their User Agreement, but few LinkedIn members noticed that on June 16, 2011 the LinkedIn User Agreement changed. LinkedIn’s new User Agreement is not radically different from previous versions. However since the LinkedIn User Agreement binds +120 million members world-wide it seems that these members would want to know that members expressly agree that they will comply with Section 10 B “Don’t Undertake the following” including (without limitation):

1. Act dishonestly or unprofessionally by engaging in unprofessional behavior by posting inappropriate, inaccurate, or objectionable content to LinkedIn;

2. Publish inaccurate information in the designated fields on the profile form (e.g., do not include a link or an email address in the name field). Please also protect sensitive personal information such as your email address, phone number, street address, or other information that is confidential in nature;

5. Invite people you do not know to join your network;

6. Upload a profile image that is not your likeness or a head-shot photo;

How many people violate LinkedIn’s User Agreement every day? If LinkedIn terminates members for violating the User Agreement they run the risk they become ostracized from an important Social Media network, so one would think it important to read the User Agreement!

What does your business do to protect itself from bad behavior on your website? Do your terms of service comport with your business and the visitors to your website?

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LinkedIn now has 90 million users and the IPO information about the Social Media site is most interesting, including revenue over $161 million for the first 9 months of 2010 which was twice the total revenue for 2009. The current estimated IPO value of $2.51 billion is pretty astonishing with only 3 products:

1. hiring solutions (job listings),
2. marketing solutions (advertising), and
3. premium subscriptions.

Those of us who are active on LinkedIn see the great value for networking, and it’s amazing that LinkedIn could have such a market value. Clearly this is an interesting message about the value of Social Media sites like Facebook which has +600 million friends and an estimate $2 billion in revenue in 2010!
 

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Please join the webcast about Social Media Use with my good friends Michelle Cheng, Yvonne Gierczyk-Skasko, and me sponsor by the ALI-ABA (American Law Institute – American Bar Association) which be live on December 7, 2010 at 12:30pm CST. Michelle, Yvonne, and I will discuss our experiences with Facebook, LinkedIn, Yelp, and many other Social Media sites. We will discuss the Coca Cola Social Media Principles, a recommended Law Firm Social Media Policy, and this top ten list of the legal risks associated with employee use of Social Media:

1. Copyright Infringement – posting content without permission from the owner
2. Trademark Infringement – showing third party logos/TMs without permission
3. Right of Publicity/Privacy – showing a person’s image/likeness without permission
4. Defamation, Libel and Slander – making false claims about a person
5. False Advertising/Unfair Competition – making false claims about a product or service
6. FTC Guides on Endorsements & Testimonials in Advertising – truth in advertising principles apply in digital media and word of mouth marketing. Bloggers or Social Media influencers that are compensated to blog/post/tweet about the Company must disclose the fact that they were compensated. Employees should disclose the connection to their employer when blogging/tweeting/posting about the Company’s products or services in Social Media.
7. Disclosure of Proprietary/Confidential Information –disclosure of material information
8. Labor – FLSA issues - e.g. non-bargained for employees engaging in Social Media during off-hours.
9. Employee/HR issues – employee conduct on Social Media
10. Collection and Retention of Personally Identifiable Information (PII)

Please join us on December 7th AT 12:30pm CST and of course we welcome your comments and feedback.

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Tweets a plenty were posted announcing that Wikipedia and LinkedIn were down, but one tweet wondered what would happen if Twitter also went down! We are so dependent on these Social Media tools that when these sites go down the communications also disappears….except probably text messages, phone calls, or even face-to-face conversations. If Social Media sites going down for a short time cause shock waves just image what would happened if the President flipped the “Internet Kill Switch?” Or if a Cyber War totally disabled the Internet and Social Media? These events only re-enforce how vulnerable the Internet is and how critical it is that our government does everything possible to protect the Internet.

We All Know that Computers Will Fail

After working with computers for more than 40 years one thing is absolutely clear to me, every computer will fail since that is the inherent design…that is, every component will fail at some point since each component has a mean time between failure. So Internet system designers take into account system failures to avoid Internet down time, or at least minimize down time. Because of the nature of computer technology and its inherent design that they will fail it’s not really much of a surprise that Wikipedia, LinkedIn, and other Social Media sites are reported down from time to time. However we have become so dependent upon Social Media that we are all at a loss about how to communicate during down times!

Good News - More US Broadband

Recent reports announced “that $795 million in grants and loans for broadband deployment projects across the US in all 50 states from the National Telecommunications and Information Administration (NTIA) and the US Department of Agriculture's Rural Utilities Service (RUS). The Texas Department of Agriculture recently announced that “More than 96 percent of Texas households have access to home broadband service; however, a quarter of a million households in the Lone Star State - more than all of the households in Vermont - lack access to this critical service.” However if that were really true then it’s unlikely that the NTIA and RUS would be spending so much money. Rural Texas and US do not have broadband services as I know my own personal experience in central Texas, just check the ConnectedTexas.org website to see. We will have 100% broadband coverage in the US someday, and it’s great that the federal government is helping expand broadband.

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For purposes of dealing with web 2.0 the White House Memo released on April 7, 2010 about social media specifically states that “interactive meeting tools—including but not limited to public conference calls, webinars, blogs, discussion boards, forums, message boards, chat sessions, social networks, and online communities—to be equivalent to in-person public meetings.” The White House Memo is a follow-up to President Obama’s January 21, 2009 (day after the President was sworn-in) “calling for the establishment of ‘a system of transparency, public participation, and collaboration.’” Fascinating development that blogs, Facebook, LinkedIn, Twitter, MySpace, Yelp, and the like are public meetings which means that one should expect little privacy from use of these online services.

Majority of Government Agencies Use Social Networks

This report states that a majority of government agencies now use social networks is hardly a news flash, but put in context of the White House’s Memo that use of social networks are public meetings may change the public view of how they communicate. Of the 400+ million Facebook members of an estimated 70% are outside the US, and one may wonder how communications across international borders impacts the declaration that social media is public meetings.

Yelp and the Business of Extortion 2.0

This recently filed class action suit accuses Yelp of extortion to get bad comments removed from Yelp and lower rankings by reviewers. It remains to be seen whether this case will succeed, but if Yelp is considered a public meeting by the White House it makes one wonder how extortion fits in. Not to mention that the 50 million a day of tweets on Twitter are considered public meetings, even though at least 14,000 are followers of a Doonesbury’s cartoon character Roland Hedley! Web 2.0 is definitely taking us in interesting directions!

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In a 5-4 ruling the Ohio Supreme Court now requires a search warrant to search cell phone content which the American Civil Liberties Union of Ohio calls a landmark decision as this appears to be a case of first impression. The defendant’s cell phone was searched without a warrant after he was arrested on drug charges based on a police sting operation. At trial the defendant claimed a violation of the 4th Amendment that although the police had the right to take his cell, the police did not have the right to search the contents of the cell. A decision to appeal to the US Supreme Court is pending.

US Supreme Court Agrees to Consider Text Messages

This week the Supreme Court agreed to consider the privacy claims of police officers text messages in City of Ontario v. Quon. The question before the Supreme Court is whether the city employees are entitled to privacy of the text messages stored at Arch Wireless’ servers since the city provided the text services to the officers as part of their jobs. Each officer received 25,000 characters a month as an allowance and the officers paid for any overages. The city paid no attention to the text messages until it discovered that officer Jeff Quon (who paid for characters above the allowance) had sent sexually explicit messages that were clearly personal and not business related. The question in this case is also a claim of violation of the 4th Amendment.

Web 2.0 Communications

Given what people post on social networking sites like Facebook, MySpace, and LinkedIn it is a wonder that many folks expect much privacy today. Courts will continue to be confronted with perplexing issues regarding the use of the Internet and this will never be less complex, but as I  blogged this week Judges in Florida should not be social network friends with lawyers who appear before them in cases even though lawyers may contribute to their election campaigns. As web 2.0 expands one easily images that the courts will have to reconsider how the 1789 written Constitution applies.

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A report that Roman Catholic bishops in Italy are urging Italian Catholics to give up texting for lent sends a very interesting message. This suggestion is more than a no-meat Fridays, to stop communicating with texts for 5 weeks. However there’s more at play than it seems. Most Millennials communicate by text rather than phone or email, so one might wonder if this message was directed at trying to get Millennials more involved with their religion.

Political & Social Issue

All cell phone and many other chips rely on Coltan, short for columbite tantalite, and 80% comes from the Democratic Republic of Congo. So the political side of the no texting for lent is to highlight the years of conflict in the Congo where apparently farmers and children have been enslaved to dig for Coltan and the monies have been used against the citizens.  As well many of the wildlife preserves are being destroyed. There is even a “No blood on my cell phone” campaign as part of a requested embargo against the use of Coltan.

Web 2.0 Issue

Without question the Web 2.0 world has changed the way in which we communicate, and hundreds of millions of individuals regularly spend time texting, sending emails, and posting information on FaceBook, MySpace, LinkedIn, and/or Twitter. So giving up texting for lent does not seem like a very pragmatic proposal since such a proposal is not much different than giving up talking to for lent. Actually FaceBook just announced that it was expanding the amount of information about each friend and instead of a 5,000 friend limit, there will be no limit. So clearly Web 2.0 will only expand and giving up any Web 2.0 for lent seems impractical.
 

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Notwithstanding all the .com failures over the past 15 years it’s unusual to see an Internet phenom change the waterfront so much as twitter. If you were otherwise not aware, twitter with a member base of about 4 million is a micro-blogging service which limits its messages to 140 characters and it just announced that it raised $35 million in third round of funding. However twitter has never had a marketing plan, and as a matter of fact twitter just hired its first director of business development. There was a lot of media attention on twitter when President Obama planned to use twitter to announce his running mate in 2008.

Is twitter on its way to being an Internet giant?
 

A recent article speculated that twitter is replacing Second Life as a business tool because of twitter’s ease of use on cell phones, takes little time to set up, and requires no software. On the other hand Second Life and other virtual worlds, require substantial time and resources to set up. Not to mention that one cannot conduct business in Second Life on your cell. Many B2B marketers are using twitter including BearingPoint, British Air, and McKinsey & Co. Dell Outlet sold hundreds of refurbished computers in a couple of hours by merely sending tweets (a twitter message).
 

Security Concerns for Social Networks
 

At a recent security conference researchers reported that apparently, without much surprise, individuals who use social networks are naïve and as a result have absolute trust in communications they receive from friends in twitter, FaceBook, MySpace, and LinkedIn. As we are all aware, with the growth of Web 2.0, millions of individuals around the world are spending vast amounts of time and energy with to these social networks. However, these security researchers demonstrated how imposters using these various Web 2.0 networks can steal identities and personal information with great ease. Given these warning of security issues we need to stay tuned for the continued evolution of twitter and the other social networks.
 

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