Social Media for Government Lawyers: Contracts, Meetings and Public Records
Oct 30th, 2009 by martin
The United States of America established a government by the people to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”[1] So where in the Constitution of the United States do we fit in “public outreach … communicate with citizens… encourage feedback” as the new federal Gov 2.0 guidelines mention as a primary goal[2]? And who should government lawyers and employees “friend” on Facebook to meet this iconic goal? Answers: nowhere and everywhere; nobody and everybody.
The so called web 2.0, which goes beyond information utility and infrastructure of the internet to arrive at human networks and community, has brought great change in our society: the disruption if not marginalization of the traditional print periodicals; growth of importance of intellectual property; and the rapid efficiency of information flow. But it also has complexities that must be attended to and not overlooked by its ease of use and entertaining value. The most promising offspring of Web 2.0 is the so called “social media.” Consider a working definition of social media as any web presence that relies on a community of users as a primary operating function, and for content creation and communication. There are a number of examples, such as Scribd.com, Facebook.com, Twitter, Linked-In, etc. Observing this media and working with it can be entertaining for everyone, including public servants. However, the attorneys who serve the interest of the state must readdress the solemnity of their office and appreciate the risks in misuse of this powerful media whose story will not be fully written for years to come.
Recent changes in social media have presented certain fact patterns that neither our founders nor today’s government lawyers know how to easily deal with. Social media has become a great allocator of information, commonality, and may be a vehicle to “establish justice” or “promote the general Welfare.” But several governmental units have discovered its capacity to do the opposite of these seminal directives. Moreover as commercial operations such as YouTube, Facebook, MySpace, LinkedIn, Wikipedia, Twitter, RSS feeds, and Second Life have triggered multiple disputes in tort, contract, judicial and legislative issues, and public meetings, both government attorneys and the larger legal community must recognize that the laws still apply. The only difference is the fact patterns.
1.0 Contracting In The Social Media Context
There are at least two levels of potential dispute when contracting online. One are the host’s terms of use, these are the terms you must click on in order to avail yourself of the website. The second is the potential of contract formation among interest groups users; for example, terms stating that “in order to be a part of the Highway 101 improvement project you must be a government employee directly involved with the project or a contractor and agree to our group’s privacy polices” Hosted social networking sites may or may not allow modification of their terms of use.
Contract law has not changed with the advent of the internet. The basic requirements for contract formation are the same: offer, acceptance and consideration. It is immaterial whether you call something a contract, terms of use, policy or other document. The basic contractual requirements and tests will apply. Electronic interactions are sufficient objective manifestations for evidence of a meeting of the minds to occur. Involving primarily two laws, the so called Uniform Electronic Transactions Act[3] adopted by the majority of states’[4] and the Federal E-Sign Act[5], one can no longer challenge the enforceability of a contract by the simple fact it is conducted electronically.
A long litigated issue has been the enforceability of “shrink wrap” licenses, those pasted on the box of software, and later, “click-wrap” licenses whereby a user must click the “I agree” button after reading the terms of use contract. Today, it is generally settled law that click-wrap is enforceable. The first case on the merits in 1998 held that a Terms of Service contract in click-wrap format could be enforceable in court.[6] But not all of these online contracts are enforceable.
The higher risk clauses that are litigated deal with issues such as consumer contracts that amount to unreasonable contracts of adhesion. Generally, the first thing litigated is the jurisdiction clause, followed by forum selection and venue clauses. If the transaction is minor, a significant right is waived, such as a jury trial, prior to knowledge of a dispute, and uneven bargaining power, these clauses will be attacked and in relatively rare cases, not enforced if the consumer is harmed.
The best practices in online contracting can be summarized as “the dearer the right, the greater the overt act of acceptance that is required.” This comes down to whether the “I agree” checkbox seen at the bottom of the contract is unselected, or the “I do not agree” checkbox is pre-selected whereby the user must click on the “I agree box” and simply cannot go any further with the download or use of the site until that overt act occurs. A greater level of overt act requires the user to scroll down the entire contract until the “I agree box” is able to be selected. The user must have an opportunity to print the agreement and be given either notice of changes or of their duty to check the terms of use for updates. Material changes must have some sort of notice which is fairly straight forward for most user accounts.
Social media contracts and contracts between users can be made. So too can intellectual property rights be infringed. Intellectual property includes copyright, patent, trademark and trade secret. The use and misuse of these can lead to potential liability. One of the greatest risks for social media users is copyright infringement; governmental bodies seeking to use the medium are well advised to comply with the Online Copyright Infringement Liability Limitation Act (OCILLA) or the so-called notice and takedown provisions, where a specific process is followed in the event of alleged infringement.[7] A safe harbor filing provides protection and is a filing that all entities should make with the United States Copyright office as the fees are relatively small, but the protections against copyright infringement are great. The registration fees for Online Service Provider designation (which is the recordation of an interim designation of agent to receive notification of claimed infringement under section 512(c)(2)) are minimal.[8] Here, the “group” may qualify as an online service provider.
Torts can be committed online. These generally involve privacy torts, such as defamation or portrayal in a false light or use of image without permission; and economic torts, interference with business expectancy and contractual relations . Government lawyers must know that anything posted may trigger certain liabilities.
2.0 Public Records
The public records law in Oregon applies to every public body, as defined, which includes the governmental unit and any agency thereof, boards and commissions.[9] A “Public Record” essentially is a writing that contains information regardless of form.[10] All government employees must accept the fact that everything is potentially discoverable, and even if an exception is claimed, there is a very strong presumption in favor of disclosure, meaning the public or a judicial body can request, or order, disclosure.[11] The identity, motive or need for disclosure is irrelevant.[12] I major cities[13] migrating to third party email systems as society moves to so-called “cloud computing,” arguments claiming privacy are more difficult. By necessity, the private email account that deals with anything involving policy should be presumed to be a public record.
It matters not whether the account of the record is a governmentally sponsored system or a private email account.[14] Even home computers are subject to discovery.[15] The issue is the conduct of use, if it in any way involves the conduct of the public’s business, consider even private home computers to be discoverable.
Exemptions are not determined by a bright line test, and the public records will be released unless the “public interest” requires non-disclosure.[16] Conditional exemptions include things like trade secrets, civil rights investigations, locations of archeological sites, documents created pursuant to a litigation that may qualify as work product by the public entity, or exemptions related to public safety issues.
3.0 Public Meetings
Oregon favors that “decisions be arrived at openly” which means public debate by a Government body, which consist of two or more members, with authority to make decisions for or recommendations to a public body or administration. [17] Notice must be “reasonably calculated to give actual notice to interested persons including news media which have requested notice, of the time and place for holding regular meetings.”[18]
The issue of notice is important as online notice is not as inclusive for public meeting standards as it may seem. There are many individuals who do not have access to the Internet, by choice or circumstance. For a government agency to think this is broad reach is a misconception. For example, there is some data on click through regarding banner ads which indicates 8% of Internet users click are responsible for 85% of all clicks.[19] There may be certain justice requirements if individual rights are allocated or policy is made solely by electronic meeting or electronic notice of the meeting.
3.1 Inadvertent Quorum
If a governmental body forms a quorum, which could be two or more who can make recommendations on policy, the public meeting statues are triggered and policies arrived upon could be subject to attack on a number of grounds; as described above, lack of actual notice to the public may be one of them. The word “quorum” is a function of bylaws or organizational charters whereby the minimum number of governing body members is specified. In the absence of such specification, the “majority” may do, “in the absence of a special definition of ‘quorum’’ the statutory definition[20] of “three or more persons” may apply according to the Oregon Attorney General’s Manual.
3.2 Archiving and Data Migration Issues
Government agencies must archive records. Social media, if meeting the requirements of public meetings or meeting the archive requirements, must be retained.[21] One large problem with cloud computing is the data migration issue. For example, if one moves a group from one social networking site to another, those proprietary systems may be less able, or more likely, impossible to port data.
4.0 Conclusion
The essential nature of social media may be permanent or may be replaced by something else but what is important is the facts will shape the law. Whether or not this is the wave of the future, or our version of the Citizens Band radio fad of the 1970’s, or something in between, we will see as these cases wend their way through our judicial system.
[1] Preamble, United States Constitution.
[2] Guidelines for Secure Use of Social Media by Federal Departments and Agencies, Information Security and Identity Management Committee (ISIMC) Network and Infrastructure Security Subcommittee (NISSC) Web 2.0 Security Working Group (W20SWG)
(September 2009).
[3] 1 Promulgated by the National Conference of Commissioners on Uniform State Laws.
[4] States that have not accepted the uniform act but have chosen their own include: Georgia: Ga. Code Ann., § 10-12-1; Illinois: 5 ILCS 175/1-101; New York: NY CLS State Technology § 301 et seq.; Washington: http://apps.leg.wa.gov/RCW/default.aspx?cite=19.34
[5] Pub. L. No. 106-229, 114 Stat. 464 (2000) (codified at 15 U.S.C. § 7001 et seq.).
[6] Hotmail Corp. v. Van$ Money Pie Inc., No. C-98 JW PVT ENE, C 98-20064 JW, 1998 WL 388389 (N.D. Cal., 1998).
[7] 17 USC § 512.
[8] Current fee schedule may be found at: http://www.copyright.gov/docs/fees.html
[9] ORS 192.410(3).
[10] ORS 192.410(4)(a).
[11] See, ORS 192.420(1).
[12] Smith v. School District No. 45, 63 OR App 685 (1983).
[13] http://weblogs.baltimoresun.com/news/technology/2009/10/los_angeles_moving_to_gmail_an.html
[14] ORS, 192.001(b).
[15] Nike v. City of Beaverton,
[16] ORS 192.501 et. seq.
[17] ORS 192.610(3).
[18] ORS 192.640.
[19] The results of an update to the comScore highly publicized “Natural Born Clickers” research, conducted two years ago with Starcom USA and Tacoda, indicate that the number of people who click on display ads in a month has fallen from 32% of Internet users in July 2007 to only 16% in March 2009, with an even smaller core of people (representing 8% of the Internet user base) accounting for 85% of all clicks. http://74.125.155.132/search?q=cache:E0bm9WAqyRsJ:www.mediapost.com/publications/%3Ffa%3Darticles.showarticle%26art_aid%3D115210+85%25+of+click-throughts&cd=2&hl=en&ct=clnk&gl=us
[20] ORS 174.30.
[21] ORS 192.005.
