Social Media

On May 18, 2011, the New York County Lawyers’ Association (“NYCLA”) issued Formal Opinion No. 743 (available at http://www.nycla.org/siteFiles/News/News159_0.pdf).  The Opinion laid out the boundaries for attorneys to research jurors during litigation.  As a general rule, an attorney may passively view all of jurors’ publicly available social networking sites as long as s/he can do so without contacting or communicating with the juror-- which means no "friend requests," connecting, or subscribing to a juror's social media network.

On May 24, 2011, the San Diego County Bar Legal Ethics Committee ("Committee") issued an advisory opinion [Scribd] finding that an attorney who sends an ex parte "friend request" on a social network site to a represented party violates California Rule of Professional Conduct 2-100 and the ABA Model Rule 4.2, which prohibit direct communication with a represented party. In addition, an attorney who attempts to "friend" an unrepresented individual involved in litigation, such as a witness, without first disclosing his identity and motive to use the individual's information in litigation violates his ethical duty to not mislead or deceive.

Last week, on June 23, 2011, the Vermont Supreme Court, in State v. Simmons, --- A.3d ----, 2011 WL 2474275, affirmed a trial court decision that applied the "settled Fourth Amendment precedent" that "internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other noncontent data to which service providers must have access."  In addition to this interpretation of federal law, the Court also agreed with the trial court's conclusion that Vermont's Constitution "affords no privacy protection in an internet service provider's subscriber address or use information disclosing non-content data."

Perkins Coie's Internet Industry Group is a sponsor of the ITech World Technology Law Conference in San Francisco on May 12 and 13, 2011.

Perkins Coie Partner Albert Gidari helped Google successfully negotiate a resolution of the FTC's investigation of the company's Buzz social networking service.

Perkins Coie Partner Dax Hansen was quoted this week in an article published by Internet Retailer, "Changing Their Stripes." The article discusses initiatives recently launched by Visa and MasterCard Worldwide in response to an increase in e-commerce and the rise of online competitors like PayPal and Facebook Credits.

YouTube received a resounding win in a recent decision in the long-running Viacom v. YouTube case (Viacom Internationa, Inc. v. YouTube, Inc., 2010 WL 2532404 (SDNY June 23, 2010)).  YouTube moved for summary judgment based on the safe harbor provisions of the Digital Millennium Copyright Act (DMCA), and despite Viacom's argument that the safe harbor was not applicable to YouTube on a wide variety of grounds, the court granted summary judgment on all direct and secondary copyright infringement claims.   Although this is only a lower court decision, this is an important victory for social media sites, as they rely on the DMCA safe harbor to provide protection from copyright infringement claims for content posted by third parties.

Perkins Coie Partner Albert Gidari testified today before the Committee on the House of Representatives' Judiciary Committee, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, on the need for reform of the Electronic Communications Privacy Act (ECPA). Gidari noted that ECPA is 25 years old and its application to many new services like cloud computing, social networking and location-based services is unclear. He called for clear rules for service providers to disclose user content, communications and information and for more transparency about the amount of information collected by governmental agencies. Read written testimony.

The California Senate recently approved a measure that would prohibit social networks from displaying, to the public or other registered users, the home address or telephone number of users under the age of 18 (SB 1361).  Social networking sites that knowingly violate the bill could face civil penalties of up to $10,000 for each violation.  The measure passed 25-4 and now moves to the Assembly.

Today, United States District Court Judge Jeremy Fogel awarded Facebook $711,237,650 in damages against Sanford Wallace, one of the world's most notorious spammers, commonly known as the "Spam King." Earlier this year, Wallace engaged in a sophisticated spamming and phishing campaign against Facebook users.

Earlier this month, the British High Court made history by issuing an injunction via Twitter to stop an anonymous Twitter user from impersonating right-wing political blogger and lawyer Donal Blaney.  The Twitter account in question, @blaneysblarney, is named after Blaney's blog, uses a real photo of Blaney, and does not give any indication that the account is a fake or parody.  The High Court stated that this is a clear breach of Blaney's intellectual property rights and ordered the user to stop posting and immediately identify him or herself to the court via a web link form.  The Twitter user targeted by the injunction will receive a direct message with a link to the injunction from Blaney's attorney the next time he or she accesses Twitter.

A federal district court has ruled that a conviction under the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, for violating a Web site’s terms of service must be overturned under the void-for-vagueness doctrine.  United States v. Drew, No. CR 08-0582-GW (C.D. Cal. Aug. 28, 2009).

In the last two weeks, two courts--a New York state court and a federal court of appeals in Washington, D.C.--considered the issue of when to unmask anonymous online speakers. The New York state court considered the issue in the context of a pre-action discovery request and ordered Google to disclose the identity of an anonymous blogger so that a potential plaintiff could file a suit for defamation. The D.C. Circuit Court of Appeals considered what standard to require when presented with a motion to quash or enforce a subpoena seeking the identity of an anonymous defendant. These two cases represent the latest developments in the evolution of judicial rules governing the unmasking of anonymous online speakers.

During this complimentary Webcast, sponsored by BrightTALK, Perkins Coie Of Counsel Susan Lyon will focus on social media privacy issues.

On September 11, 2009, Perkins Coie Of Counsel Lisa Oratz will co-chair a seminar on "The Rise of the 'Social Internet' and Social Media Law." The seminar will examine how social media is changing the way we interact. It will also look at the unique issues affecting social media companies and how to minimize the inherent risks of social media marketing, while maximizing the benefits.

In an article in Computerworld, Perkins Coie Partner Tom Bell writes about why your company needs a social media policy.  A company that engages in social media enters the world of publishing.  When company employees participate in social media on behalf of their employer, they subject the company to some of the same risks that apply to newspapers or individuals, but with less protection.  An employee acting outside his or her scope of employment can also put the company at risk.

On June 12, 2009 the Article 29 Data Protection Working Party adopted an opinion regarding its expectations for operators, application providers and users of social networking services – including those based outside the EU – to meet the requirements of EU data protection law.  See WP 163, “Opinion 5/2009 on online social networking.”

While you are in town for the Outdoor Retailer Summer Market, Perkins Coie, D.A. Davidson and the Generator Group invite you to take some time to unwind at Salt Lake City's Grand America Hotel. Connect with other industry leaders, learn how social media is affecting the industry and enjoy an evening of cocktails, dinner, or both.

Beginning June 13, 2009, at 12:01 a.m. EDT (June 12, 2009, at 9:01 p.m. PDT), Facebook will allow current members to select a username that will be associated with their personal profile or their Facebook Page (which is a profile page for a business, brand or public figure).  The selected username will appear at the end of the facebook.com URL in the location bar of the browser window in place of the current randomly assigned numerical reference.  An example of the use of a username would be: www.facebook.com/perkinscoie.

"Consumers who spend the most dollars online are also highly involved in social activities, especially those that include creating contents and participating in dialogues."   According to Internet Retailer’s emerging technology survey, almost 40% of retailers maintain a social networking site.

121 P.3d 831 (Ariz. Ct. App. 2005)
Arizona Court of Appeals affirmed trial court's holding that Acacia violated the Telephone Consumer Protection Act (TCPA) by delivering unsolicited text message advertisements to Joffe's mobile phone. The appellate court determined that the TCPA applies to text messages, and application as such did not violate Acacia's First Amendment rights.