In a recent Corporate Counsel article, the authors describe a Federal Trade Commission ruling about the disclosure of connections between corporate advertisers and those who shill, directly or indirectly, the advertisers’ wares. 

Listen up, all you internet users (which is basically everybody but my mother, who still views the Internet as the work of the devil, and will quote from the book of Revelation in support of her theory).  Three bills you need to be aware of, because they may change the way you view (or more correctly, the way you are allowed to view) the Internet.  and from what I’m reading, there are some pretty darned big sites and companies that are ready to either “go dark” in protest (Wikipedia, for example, which is where I do most of my legal research) or lend a big supporting hand to the protests of the current bills being considered (Google is one – who can live a day without Googling something?  I mean for cryin’ out loud the Company has made itself into a verb!!).  Those bills are:

Do you feel at a loss or intimidated or repulsed by the thought of using social media? Like it or not, social media sites are a new means of communication, which we cannot ignore any more than we can ignore email. The fact is social media, if used properly, can be an effective, professional, and personal tool. If you are not using these sites currently, take a few minutes to see why you should be using social media and what you can do efficiently and effectively to save time, learn more and even advance your career. 

In the wild, wild west of the internet, it looks like the Federal Trade Commission is saddling up to play the role of sheriff. On November 29, 2011, the FTC announced its proposed settlement of claims against the social networking goliath, Facebook. (By the way, you can read about it on the Commission’s Facebook page. http://www.facebook.com/federaltradecommission?v=wall.) The settlement resolves an eight-count administrative complaint charging Facebook with misleading their users by telling them they would protect the privacy of personal information, but repeatedly allowing that information to be shared with third parties or made public without the users’ knowledge or consent.  (In the matter of Facebook, Inc., File no. 092 3188.) Coming on the heels of the FTC’s March 2011 settlement of charges that Google, Inc. violated its own privacy promises to consumers when it rolled out its social network site, Google Buzz (In the Matter of Google, Inc., File no. 102 3136), the Facebook case demonstrates the agency is willing to use consumer protection laws to “make sure companies live up to the privacy promises they make to American consumers.” http://ftc.gov/opa/2011/11/privacysettlement.shtm.)

This past summer, the University of North Carolina was hit with a bevy of NCAA sanctions stemming from several members of its football team having received improper benefits from sports agents in violation of the NCAA’s amateurism rules.  Scandals like the one that hit UNC are nothing new to college football, as the University of Southern California, the University of Miami, the Ohio State University and others have likewise faced the wrath of NCAA sanctions for their student-athletes’ impermissible relationship with agents and receipt of money, cars, houses…you name it.  What’s notable about the UNC scandal is the role that social media played in the whole fiasco.  In its Notice of Allegations, the NCAA cited UNC for its failure to properly monitor the social media activity of its football players.  One player in particular had several Twitter posts that indicated that he was receiving impermissible benefits, to which the UNC athletic department was oblivious and which reportedly initiated the investigation.  

I’m working through a fascinating tome on the birth and history of ESPN, Those Guys Have All the Fun – Inside the World of ESPN.  Besides giving us an inside look at ESPN, which started from nowhere and was broadcasting from what some would say nowhere (no offense to Bristol, Connecticut, which I’m sure is a lovely town), the book provides us a sense of what goes into turning a great idea into reality.  The first lesson I took from the book is that a great idea is not enough. 

In 1978, Bill Rasmussen had a dream for an all sports channel, and with $9,000 he put on his credit card and some money he squeezed from family members, he sought out investors.  Eventually he landed a huge one and ESPN was on its way.  Unfortunately, his big idea was not enough.  All the hours he and his family poured into the venture was not enough.  Even the money wasn’t enough. What he lacked was a coherent, detailed long-term plan that projected how ESPN would succeed.  Others would come work for the company. Those who had a plan.  Ones who could see Bill’s vision, who understood you needed more than just a vision and who created a plan to implement it.  And along the way, Bill lost control, became what some would say ”irrelevant” and was eventually bought out.  His idea wasn’t his anymore.  His dreams had become someone else’s.  And that was it.  A brilliant man was pushed out.  Unfortunately for Bill he was missing the plan - details big and small – and eventually he got in the way of his dream.  ESPN appeared to have outgrown him.

Whether it is planning for a case, leading an organization or figuring out your life, yes, you need the big ideas.  Without Bill, there may never have been an ESPN.  And yes, you need the hard work.  And sometimes, you’ll need capital too.  But those ingredients don’t work unless you know where you’re going and have figured out how best to get there.  That means both big picture and little picture. That means understanding and knowing the “business” of whatever you are doing.  Figuring it out as you go along isn’t good enough.  See where it got Bill. 

The legal community is beginning to take notice of the trend of moving away from paper and toward eBooks. Attorney Jean P. O'Grady recently blogged on the topic.  Ms. O’Grady concluded that the eBook model is a poor fit for the legal community.  

Did you know that AFLAC generates 75% of its revenue from Japan? Gilbert Gottfried must know that now. The voice of the AFLAC duck in its U.S. commercials was fired this week after insensitive comments he made about Japan's tragedy on Twitter. This article in the DRI Voice discusses some of the pitfalls of social media like Twitter.
 
The total cost of the earthquake damage could be between $100 billion and $190 billion (estimates from Eqecat, the catastrophe modeling firm and Barclay's Capital respectively). However, because most earthquake risk in Japan is covered by the government, insurance losses are likely to be in the range of $12-25 billion. For comparison, Hurricane Katrina caused total losses of $125 billion, of which $62.2 billion was insured. The 1995 earthquake in Kobe caused economic losses of more than $100 billion, but only $3 billion was insured loss. That area was not considered earthquake-prone, so earthquake coverage was less prevalent than in other areas. But that catastrophe did increase the rate of coverage.
 
The Wall Street Journal reports that insurance claims related to the disaster in Japan will be generated far from the island-nation. They quote Rod Fox of reinsurance broker TigerRisk that the disaster will "have far-reaching effects, and the business interruption claims can mount very quickly." Already ON Semiconductor has reported that they are "working with [their] insurance carriers to assess and recover incurred losses from business interruption, supply chain disruption and property damage..."
 
Our hearts go out to everyone affected by this catastrophe in Japan and we'll be seeing these issues for some time to come.

Last year DRI appointed a Social Media Task Force of lawyers to work on DRI’s policy towards social media and its use to enhance and promote the DRI brand. I have the honor of being a member of that group. Our task force’s collective interest is often piqued when we hear of new trends or developments with social media, such as when we learned this week that the Maryland Department of Corrections joined the increasing number of employers requiring employees or job applicants to provide their usernames and passwords in order to access to their personal Facebook accounts.

There is a growing debate in the United States about whether employer-mandated access to personal social media sites is a violation of privacy rights or principles. In the case of the Maryland Department of Corrections, they required a prospective employee to provide Facebook access during an interview. Soon after the interview, they received a letter of protest from the ACLU.

In essence, this practice allows the employer to log in to the applicant’s personal account as if it were the applicant, providing access to not only his or her account, but also to certain information on the pages of the applicant’s friends, most of whom presumably have set up their accounts with privacy settings limiting access to this information. The ACLU compared the Maryland DOC practice as equivalent to requiring the applicant to allow access to personal phone calls as a condition of employment. While searching the internet for public information is likely fair game, the ACLU contends that requiring access to private information is an unwarranted and illegal invasion of privacy. Regardless of the ACLU’s allegations, it is almost certainly a violation of the Facebook user agreement, which requires that a user not allow others to access his or her account.

The Social Media Task Force would like to know what you think. Does the practice engaged in by the Maryland Department of Corrections and other public or private employers violate any state or federal privacy rights? How should we advise our clients if they are considering implementing a similar policy?

This is another great article from Legal Technology News, illustrating the discoverability of social media information.  While courts are still working out the finer points of what is and is not discoverable, everyone should take note that your social networking information is always at risk of coming back to bite you.  For litigators, this tool is becoming more and more necessary.  A good cross-examination always depends on the witness mis-stating, mis-remembering, or out right fabricating a statement that is inconsistent with previous behavior or a previous statement.  Surveillance depends on people acting inconsistently in public and is an effective tool in litigation.  Social networking and social media provide the exact same opportunity; that is to uncover inconsistent public behavior.

The most interesting thing about this article to me is that facebook has now added an application to allow a user to download their entire profile history.  A litigant could request a plaintiff to do this in discovery if it would lead to admissible evidence that could not be found in any other manner.  I’m not aware of a court ordering a plaintiff to perform such a download but I would not be surprised to see the issue come up soon.