By Martin Medeiros
Originally posted on November 30, 2009
The United States of America established a government 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.” So, where in the Constitution of the United States do we fit in “public outreach … communicate with citizens… encourage feedback,” as the new federal government 2.0 guidelines mention as a primary goal? And who should large private institutions, government and private sector lawyers, and institutional employees “friend” on Facebook to meet this and other iconic goals? The answers: nowhere and everywhere; nobody and everybody.
The so called Web 2.0, which goes beyond the 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; a growing importance in 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, venturemash.net, Twitter.com, Linked-In.com, etc. Observing and working with this media can be entertaining for everyone, including public servants, attorneys, scientists, educators and everyone else. However, the attorneys who serve the interest of the large institution must readdress the solemnity of their office and appreciate the risks in misuse of this powerful media, the whole story for which 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.” However, several governmental units have discovered the capacity of social media to do the opposite of these seminal directives. In the cross fire are large institutions that may contract or be heavily regulated. Moreover as commercial operations such as YouTube, Facebook, MySpace, LinkedIn, Wikipedia, Twitter, RSS feeds, and Second Life have triggered multiple disputes in tort, contract, public meetings, and judicial and legislative issues, both attorneys and the larger commercial community must recognize that the laws still apply. The only difference is the fact pattern.
1.0 What is in a Social Media Idea?
Ultimately, social media is about sharing ideas, but ideas in and of themselves may be neither valuable nor enforceable as a legal right. A few considerations include speech and property.
1.1 Free Speech.
The Internet has been a great engine of free speech, found within the First Amendment to the United States Constitution. However, if your institution is public or in certain heavily regulated industries, moderating any social media outlet may restrict speech and thus be subject to the rigors of this Amendment, which can be exceedingly complex. For example, if any restriction occurs, then it may be judicially scrutinized to determine whether the time, the place, and the manner of the restriction are reasonable. Also, you may be contractually bound by the organization’s charter, articles, bylaws, operating agreement contract if the organization has some sort of social charter or other governance restriction. This is an increasing phenomenon in the so-called “social enterprises.”
1.2 Accidental Intellectual Property.
Intellectual property may be created, and potentially alienated, in social networking sites without the parties knowing what form of intellectual property they are creating. Accidental here means “without knowledge of the law,” not necessarily without the intent to form such property.
Accidental creation generally occurs in copyright or trademark:
(i) Copyright. A copyright is created automatically upon the affixation of original works of authorship of expressive content in a tangible medium. This could potentially be anything you write down. Although copyright is automatically created, remedies are limited if you do not register the copyright with the Copyright Office within ninety days of publication.(www.copyright.gov).
(ii) Trademark. A common law trademark may occur upon the affixation of a unique source identifier on a good or if a unique source identifier is used in conjunction with the provisioning of services.
Accidental alienation would mean giving up a right you do not intend to give up, generally occurs in patent and trade secret:
(i) Patent. A patent may be created upon the disclosure of a specification or methods by which a new, useful and non-obvious device is created. A one-year clock will automatically begin to run on such disclosures, and the patent must be filed within that year or patent rights may be lost (www.uspto.gov).
(ii) Trade secret. A trademark may occur when there is disclosure of a secret that gives you a competitive advantage and has an independent economic value. Once the secret is made public, it is difficult to claim trade secret protection.
These intellectual property issues may be remedied with proper procedures on creative and innovative work disclosures. A process mapped out by an attorney to ensure that the filing deadlines are intentionally preserved or waived is a beneficial practice for such institutions.
2.0 Employment Issues.
2.1 Hiring Employees.
Controlling employees’ use of social media online has to do with productivity declines for those who do not have a legitimate business reason to use it. There can be various violations of Title 7 of the United States Code, as well as certain negligent hiring causes of actions, that can be brought against an employer. The following employment life cycle can be viewed thus:
(i) Associations. If the prospective employee is searched on Facebook, then a decision not to hire him/her because of various “groups” he/she belongs to could cause problems based upon some form of discrimination.
(ii) History. Surprisingly, individuals on social media sites, such as blogs, post things that compromise their ability to get a job, and some even post things that show off their prior illegal acts. The case can be made for negligent hiring, for example, if a visit to a prospective book keeper’s social media page would reveal they lost their previous job for embezzlement. The largest damage may be due to misapprehension about the individual’s professional conduct. For example, a litigator may be subjected to disciplinary measures or find difficulty in future employment if they post something that shows contempt for the court system or individual judges. As a governmental employer or board member, does it compromise the position of the organization to hire such an individual if that hiring could be viewed as negligent?
2.2 Employee created torts. Employees may attach liability onto the organization if they have the indicia of authorization. For example, a purchasing agent in a government procurement group could potentially be held liable for interference with business expectancy or a business relationship by posting a comment that Vendor X was late in delivery. Defamation could be a real risk if the employee posts something indicating the sales person is incompetent at their profession or suffers from a personal medical condition disclosed in confidence.
2.3 Identity Theft Protection. The various states have passed many identity theft protection acts where personally identifiable information (PII) may not be disclosed. This is a real risk for human resource professionals and those who work in licensing roles and other roles where PII is handled. Oregon’s act has a number of specific requirements that must be followed to avoid substantial liability.
3.0 Contracting in the Social Media Context.
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 or immaterial, user assent may be almost passive. However, if a significant right is waived, such as a jury trial, especially prior to knowledge of a dispute, the enforceability of such clauses is unlikely in various jurisdictions is suspect.
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. A safe harbor filing period provides protection, and all entities should file their copyrights with the United States Copyright office – 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. 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 or contractual relations. Government lawyers must know that anything posted may trigger certain liabilities.
3.2 Procurement or Purchasing Issues.
The main issue here is due diligence. For example, are government or institutional contractors vetted, at the very least, by some investigation in their public space? Is a contractor near bankruptcy in a high capital cost contract, and could this be gleaned from social media traffic?
4.0 Public Records: Cloud Computing Difficulties
Most states have public records laws that promote transparency in government. Here pubic and private intuitions should know the basics of a typical public records regime. 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. A “Public Record” essentially is a writing that contains information regardless of form. 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. Thus, the public or a judicial body can request, or order, disclosure. The identity, motive or need for disclosure is irrelevant.
An added complexity is the advent of “cloud computing”, whereby, institutions, large and small, are relying on third parties to store, house and manage the three tiered technological architecture (data, applications and operating systems) that institutions used to manage with their own assets and labor. In major cities migrating to third party email systems as society moves 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 does not matter whether the account in question is a governmentally sponsored system or a private email account. Even home computers are subject to discovery. The issue is the conduct of use. If the use 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. Conditional exemptions include things like trade secrets, civil rights investigations, locations of archeological sites, and documents created pursuant to litigation that may qualify as work product by the public entity. There are also exemptions related to public safety issues.
5.0 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. 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.”
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, either by choice or circumstance. For a government agency to think that the Internet automatically has a broad reach is a misconception. For example, one report shows that on “click-through regarding banner advertisements on websites, only 8% of Internet users are responsible for 85% of all clicks. 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. For private concerns, this has market reach and notice issues; for example, relying on electronic means for a product recall may be inadequate. Shareholder and board of director meetings offer additional complexities for the large private institution. Increasingly, poor notice is becoming an important issue and the SEC has responded regarding proxy materials online. Many jurisdictions do not have similar provisions for public policy decisions that may not rise to the level of rule-making.
5.1 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 definition of a quorum, the “majority” may be a quorum:, “in the absence of a special definition of ‘quorum,’’ the statutory definition of “three or more persons” may apply according to the Oregon Attorney General’s Manual.
5.2 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. 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 entirely unable, to port data.
6.0 Ethical Dilemmas
The ethical dilemmas presented by social networking are legendary, from jury misconduct, confidentiality disclosures, ex parte communications, communications with represented parties and judges “friending” litigants and others too numerous to mention here. This is becoming one more variable that can potentially ruin an otherwise perfect legal claim or right. The parties are best served by having an attorney draft social media policies.
The essential nature of social media may be permanent or may be replaced by something else, but most important are the facts which will shape the law. Governmental and private sector institutions enjoy the same complexities. 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. Swider Medeiros Haver has counseled approximately one dozen social media sites. The firm strongly suggests the reader not interpret these notes as legal advice but to seek competent legal counsel in your jurisdiction to draft social media guidelines for the organization.
 Preamble, United States Constitution.
 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)
See, e.g., Where a bar member blogged about a judge describing the judge as, among other things, “evil”. Florida Bar Association v. Conway, 996 SO. 2d 21`3 (2008).
 ORS 646a http://www.leg.state.or.us/ors/646a.html
 Promulgated by the National Conference of Commissioners on Uniform State Laws.
 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.
 Pub. L. No. 106-229, 114 Stat. 464 (2000) (codified at 15 U.S.C. § 7001 et seq.).
Hotmail Corp. v. Van$ Money Pie Inc., No. C-98 JW PVT ENE, C 98-20064 JW, 1998 WL 388389 (N.D. Cal., 1998).
 17 USC § 512.
 Current fee schedule may be found at: http://www.copyright.gov/docs/fees.html.
 ORS 192.410(3).
 ORS 192.410(4)(a).
 See, ORS 192.420(1).
 Smith v. School District No. 45, 63 OR App 685 (1983).
 ORS, 192.001(b).
Nike v. City of Beaverton.
 ORS 192.501 et. seq.
 ORS 192.610(3).
 ORS 192.640.
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://22.214.171.124/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.
 17 CFR PARTS 240, 249 and 274
 ORS 174.30.
 ORS 192.005.