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Ex-girlfriend’s Phony Facebook Page Tests NJ Identity... Yesterday New Jersey Superior Court Judge David Ironson refused to dismiss an indictment charging a woman with identity theft for allegedly adversely impersonating her ex-boyfriend...

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The Center for Democracy and Technology Defends Mobile... Last week the Center for Democracy and Technology (CDT) made a public appeal to gain support for their campaign to reform the Electronic Communications Privacy Act’s (ECPA)...

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Canadian Supreme Court Protects Free Speech on the... This month the Supreme Court of Canada issued a ruling that protects Website owners who provide hyperlinks to allegedly defamatory content from liability. The facts of the...

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NJ State Senator Will Introduce Online Gambling Legislation... In March Governor Chris Christie vetoed a bill that would have made New Jersey the first state in the country to allow online gambling within its borders. He vetoed the law...

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Federal Shield Law in the Senate Currently, 40 states and the District of Columbia have shield laws. Shield laws are important because they safeguard the public's right to know by protecting the rights of...

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Social Media Law News Rss

Significant 2010 Social Media Law Cases

Posted on : 26-01-2011 | By : Julie Gottlieb | In : Buzz

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Social media is constantly changing the way people and companies interact socially and professionally. As usual the law is slow to catch up. Consequently, there are very few cases explicitly targeting social media law. However, Glenn B. Manishin has written an informative article entitled, Top 4 Social Media Law Cases of 2010, which details, in his view, the most important case law developments relating to social media. Specifically, they are the Food & Drug Administration’s citation of Novartis for its Facebook content that lacked the required pharmaceutical side-effect warnings and disclaimers; the National Labor Relations Board’s assertion of jurisdiction over “protected activity” on Facebook, even where there is no union; the New Jersey Supreme Court’s decision in Stengart v. Loving Care Agency, Inc., reversing the black-letter rule that employees have no privacy interests in employer-provided email systems; and the U.S. Court of Appeals for the 6th Circuit decision in United States v. Warshak, holding the Stored Communications Act’s approval of warrantless seizure by the government of user emails is unconstitutional under the Fourth Amendment.

To learn more about the aforementioned cases, please read Manishin’s informative article. Then to learn about social media law please read my articles:

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Public Safety Jobs Require Potential Employees to Hand Over Passwords

Posted on : 25-01-2011 | By : Julie Gottlieb | In : Buzz, Government, Online Privacy, Online Speech, Social Media Policies

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For many years, smart job seekers have known that prospective employers may consider Facebook, Twitter, YouTube or other social media accounts, when making hiring decisions. What many don’t know is that now some jobs require prospective employees to sign waivers or disclose passwords to prospective employers to use in their hiring process. According to Kevin Johnson’s article, Police Recruits Screened for Digital Dirt on Facebook, etc., “Some agencies are demanding that applicants provide private passwords, Internet pseudonyms, text messages and e-mail logs as part of an expanding vetting process for public safety jobs.” Although it is unclear how many agencies actually demand passwords, as per The International Association of Chiefs of Police’s (IACP) Survey on Law Enforcements Use of Social Media it is clear that 37% of the 728 participating law-enforcement agencies use social-networking tools for “vetting/background investigations” of potential employees.

Many privacy and free speech advocates feel these intrusions have gone too far. However, in Walter Pacheco’s article, Cop Recruiters Check Our Prospects’ Social Networking Habits, Captain Angelo Nieves of the Orange County Sheriff’s Office explains that their goal is to “balance the needs for privacy and simultaneously practice all due diligence in the background process to remove any candidate that is lacking in the quality or moral fiber we are in search of.” Later, Pacheco quotes Jim Pasco, Executive Director of the National Fraternal Order of Police: “Candidates do not check their rights at the station’s door,” Pasco said. “We need to develop a policy of best practices that reflects the need for information in hiring the best candidate and ensure their civil rights and privacy is not intruded on.” However candidates do, in fact, check some of their rights at the station’s door. Prospective public safety employees have restricted free speech and privacy rights simply because they are public employees. (This is not true for a private employee because when a private employer infringes on an employee’s rights to privacy or freedom of speech there is no government action. Rather private employees are protected by statutes, employment contracts or union regulations.)

In her article, Speech and the Public Employee, Lisa Baker clearly summarizes the 2-prong test developed by the Supreme Court to determine whether a public servant’s speech is protected by the First Amendment and, thus, protected from retaliatory action. First, the Court must decide “If the employee is deemed to be speaking as a citizen on matters of public concern–in other words, the threshold tests established under Connick, Roe, and Garcetti…” If that threshold is met, “the First Amendment will offer protection only if the interests of the employee in engaging in the expressive activity outweigh the substantial interests in maintaining efficiency of operations of a law enforcement.” Thus, the Court will only do the balancing test, if the public employee is speaking as a citizen on matters of public concern.

In an excellent article entitled, Facebook, Free Speech & Firing Words Cops’, Valerie Van Brocklin explains, “The public concern requirement is determined by looking at the content, form and context of the speech.” Furthermore, the Court in City of San Diego, California et al v. John Roe wrote, “[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Then in 2006, the Supreme Court in Garcetti v. Ceballos found that a public employee’s speech made pursuant to the employee’s official duties is not protected by the First Amendment, even when it is a matter of public concern. “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Consequently, public employees’ First Amendment right to speak out on matters of public concern is limited merely by their public employee status. (Note: public employees may be protected by statute(s).)

Many public employees don’t consider this limitation when posting to social media sites like Facebook, Twitter, YouTube, etc. In Johnson’s article he gives two examples of potential police officers who have been disqualified because of their social media presence. In Massachusetts, a recruit’s text messages revealed past threats of suicide, resulting in his disqualification. In New Jersey, a candidate was disqualified for posting provocative photographs of himself in the company of numerous scantily clad women.

Although public employees, particularly police officers have been subject to extensive background checks as well as physical and mental evaluations for many years, social media has provided a new forum for potential employees to communicate as well as an informational goldmine where recruiters vet potential employees. While this seems unjust, it may be a necessary evil. Even if recruiters don’t check police officers’ social media accounts, defense attorneys will; and they will use that information to undercut officers’ credibility in court. In fact, the Fraternal Order of Police has announced that they will publish an opinion on this issue later this month.

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AMBER Alerts on Facebook

Posted on : 19-01-2011 | By : Julie Gottlieb | In : Buzz, Government

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Last week, on the eve of the 15th anniversary of the abduction of Amber Hagerman’s, Facebook, the Justice Department and the National Center for Missing & Exploited Children announced that it joined the volunteer network of organizations that distribute AMBER Alerts.

On January 13, 1996, 9-year-old Amber Hagerman was riding her bicycle in the parking lot of an abandoned east Arlington, Texas grocery store, when a neighbor said she heard Amber scream and saw a man pull Amber off her bike, throw her into the front seat of his pickup truck, and speed away. Four days later Amber’s lifeless body was found in a drainage ditch a few miles away. Although the Arlington Police and the FBI interviewed neighbors and searched for the suspect and vehicle, Amber’s kidnapping and murder still remain unsolved.

The AMBER (America’s Missing: Broadcast Emergency Response) Alert System was created in 2003, in Amber Hagerman’s name, to quickly distribute information and galvanize community assistance in the search and safe recovery of a recently abducted child. Originally, the AMBER Alert System’s broadcast mechanism was the Emergency Alert System, which is used for weather and other public emergency announcements. Then, AMBER Alerts were also disseminated by transportation agencies and wireless providers. Now, Facebook, arguably the most popular communication network in the world, will also distribute AMBER Alerts. In his article, Facebook to Broadcast AMBER Alerts for Abducted Children, Jim Puzzanghera’s quotes president of the National Center for Missing & Exploited Children, Ernie Allen, “With more than 500 million Facebook users, this bold initiative will help us mobilize many more people and bring more missing children home.”

Although AMBER Alerts have previously been available to users via local law enforcement’s Facebook pages, this new partnering will allow Facebook users to receive announcements directly from state AMBER Alert pages. This is how it works: Facebook created 53 Amber Alert pages, one per state, and one for the District of Columbia, Puerto Rico and the U.S. Virgin Islands. Users who “like” their local Amber Alert page will receive notifications about local child abductions in their news feed and can share the information with their friends. To avoid having users treat the Alerts as spam, only geographically relevant abductions will be broadcast. Thus, while alerts may be issued in more than one state, users on the east coast will not be alerted about abductions that occur on the west coast. Facebook also has an AMBER Alert App; users who want to receive alerts can sign up at. So far, more than 9,000 people have “liked” both California’s and New York’s AMBER Alert pages. According to Riva Richmond’s article, Facebook Joins the AMBER Alert Network, “Some 800,000 children are reported missing every year. The Amber Alert program has, to date, been credited with the safe recovery of 525 children across the United States.” Opening the AMBER Alert System to Facebook’s vast community exposes urgently important information to many who may have never seen or heard it otherwise.

To learn more about the Amber Hagerman case, please read:

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The IACP Teaches Police Departments to be Social Media Savvy

Posted on : 14-01-2011 | By : Julie Gottlieb | In : Government, Online Speech

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This week I wrote an article entitled, Investigators Use Social Media to Learn More About Loughner, which stressed the significance of social media in modern crime fighting. In this article, I wrote about the International Association of Chiefs of Police’s (IACP) partnerships with the Bureau of Justice Assistance, the Office of Justice Programs, and the U.S. Department of Justice, in launching the IACP Center for Social Media in an effort to build law enforcement’s capacity to use social media and related tools to prevent and solve crimes, strengthen police-community relations, recruit employees, and enhance services.

Now the IACP is showing police departments how to put their social media suggestions in to practice.

According to Courtney Potts’ article, Utica Police Add Twitter, YouTube to Fight Crime, an IACP representative visited Utica Thursday to set up Utica PD’s Twitter account and to document the process for use in an online tutorial. Similar tutorials for Facebook and YouTube were already posted online. Potts reported, “While Facebook is used by more than 60 percent of the departments with social media, only 29 percent of those agencies reported using Twitter and less than 18 percent used YouTube.” Thanks to the IACP, Utica’s Police Department now uses all three. Other police departments (and investigators) would be wise to watch as this trailblazer is tested.

To learn more about Utica’s use of social media to solve crimes, please read the following articles by Courtney Potts:

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Investigators Use Social Media to Learn More About Loughner

Posted on : 10-01-2011 | By : Julie Gottlieb | In : Buzz, Government

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Today the same social media sites that people use to connect and socialize online are also being used by the police and prosecutors to prevent and solve crimes. In fact, the International Association of Chiefs of Police (IACP), in partnership with the Bureau of Justice Assistance (BJA), the Office of Justice Programs, and the U.S. Department of Justice, has launched the IACP Center for Social Media, to build the capacity of law enforcement to use social media and related tools to prevent and solve crimes, strengthen police-community relations, recruit employees, and enhance services. Although using social media to prevent or solve crime is relatively new phenomenon, it has become standard practice for many investigators.

Many criminals use social media to brag about crimes they have committed or plan to commit. Some even post photos or videos of themselves participating in illegal activities.  Most recently, Jared Lee Loughner, identified by law-enforcement sources as the suspect in the Arizona shooting of Democratic congresswoman Gabrielle Giffords, used social media sites Facebook, MySpace and YouTube to rant about a “new currency,” “conscious dreaming” and “literacy.” Moreover, he posted threatening and despairing messages about the government, the police, and the illiterate. Please see the following articles to read or watch some of Loughner’s nonsensical ramblings:

The mere existence of these accounts provides investigators with a context upon which to view the man responsible for wounding 14 people and the killing of six people.

To learn more about how law enforcement and prosecutors use social media to prevent and solve crimes, please read the following articles.

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Businesses Benefit From Social Media Policies

Posted on : 06-01-2011 | By : Julie Gottlieb | In : Online Speech, Social Media Policies

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Social media has revolutionized the way companies communicate with their customers. It not only provides a relatively inexpensive way to gain mass exposure but it also allows companies to create intimate relationships with customers through targeted marketing campaigns and personalized interaction. However, companies must create and enforce social media policies that provide for employee training, appropriate monitoring of posts and employees, and legal compliance. Recently, Troy Sympson wrote and article entitled, How to Craft an Effective Social Media Policy for Your Business, where she interviewed Charla Claypool, an associate attorney with The Stolar Partnership LLP. Although readers won’t learn how to craft an effective social media policy from this interview, it is helpful because it explains why businesses need social media policies and summarizes some of the legal and ethical issues that businesses must contemplate when creating said policies. Please read Sympson’s article and some of my articles to learn more about the necessity of implementing a social media policy.

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California Criminalizes Online Impersonation (E-Personation)

Posted on : 04-01-2011 | By : Julie Gottlieb | In : Buzz, Government, Online Speech

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This week a California law criminalizing online impersonation went into effect. Despite the possible free speech implications, SB 1411 was passed unanimously by the legislature and was signed into law by Governor Arnold Schwarzenegger. Under Senate Bill 1411 (SB 1411), “Any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable . . . by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.” In addition, those damaged may seek civil relief against the violator in the form of compensatory damages and injunctive or equitable relief.

In a press release entitled, Malicious E-Personation Protection Effective January 1, SB 1411’s author, State Senator Joe Simitian said, “E-personation is the dark side of the social networking revolution. Facebook or MySpace pages, e-mails, texting and comments on Web forums have been used to humiliate or torment people and even put them in danger. Victims have needed a law they can turn to.” Victims can suffer not only damages to their reputations, but they can also suffer monetary and physical damages as well. Please see the following examples:

  • CEO of the Silicon Valley Leadership Group, Carl Guardino’s brother, a teacher, was impersonated by someone on Facebook whose posts made it seem as though he was mocking a disabled student.
  • In December a New York Times article, As Bullies Go Digital, Parents Play Catch-Up, written by Jan Hoffman highlighted a mother who was distressed by her son’s emotional withdrawal. She learned he was being ostracized at school because “someone had forged his identity” and created a fake Facebook page where other children where being bullied in his name.
  • In May 2009, Elizabeth Thrasher, a 40-year-old posted the photo, workplace, e-mail address and cell phone number of the 17-year-old daughter of her ex-husband’s girlfriend on Craigslist’s personals section. The 17-year-old was subsequently harassed by men over the phone and via e-mails and text messages.
  • In October 2006 Lori Drew, her daughter Ashley Grills, and her 18-year-old employee created fake MySpace and AOL Messenger accounts of a nonexistent teen named Josh Evans to befriend 13-year-old Megan Meier. Once a friendship formed, “Evans” turned on Megan. She committed suicide after reading the following message sent by Evans’ AOL account: “Everybody in O’Fallon knows who you are. You are a bad person and everybody hates you. Have a bad rest of your life. The world would be a better place without you.” (Note: Only online impersonation of an actual person that is credible and done without consent would fall under the law.)
  • In December 2009 Jebidiah James Stipe posed as his ex-girlfriend and posted an ad on Craigslist seeking “a real aggressive man with no concern for women.” One week later, a man accepted the offer, forced his way into the woman’s home, tied her up and raped her at knifepoint.

While this law will not stop e-personation, it provides a legal basis to prosecute impersonators that mitigate harm. Moreover, SB 1411 serves as a deterrent where one did not previously exist.

However, some worry it could impede free speech. For example, the Electronic Frontier Foundation (EFF), a non-profit, non-partisan organization working to protect fundamental civil liberties in the digital world believes SB 1411 undermines the First Amendment’s protection of parody. In her article, E-Personation Bill Could Be Used to Punish Online Critics, EFF’s Senior Staff Attorney Corynne McSherry’s, writes, “Here’s the problem: temporarily ‘impersonating’ corporations and public officials has become an important and powerful form of political activism, especially online.” McSherry and others like Mike Bonanno, a member of the Yes Men, a group that uses impersonation parody to raise awareness, believe that SB 1411 gives victims little legal recourse, but provides a forum for corporations and political cronies to silence activists exercising free speech. Still however, proponents of SB 1411 contend that the law will not undermine online activism and existing First Amendment free speech protections will continue to protect parody, satire and political speech.

To learn more, please read:

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