Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

<a href="https://techcrunch.com/2016/09/29/facebook-at-work-will-launch-on-october-10-in-london/" target="_blank" rel="noopener">Facebook at Work</a>, the on-the-job version of the web’s most popular social media platform, will launch in London on October 10th.<a href="http://www.techtimes.com/articles/179008/20160923/iheartradio-readies-new-on-demand-streaming-service-to-take-on-spotify-pandora-and-apple-music.htm" target="_blank" rel="noopener">Add iHeartRadio</a> to the list of Internet radio platforms that will be offering an on demand music streaming service.California law will be updated to explicitly <a href="http://www.mercurynews.com/2016/09/29/social-media-selfies-will-be-no-nos-after-new-california-law-takes-effect/" target="_blank" rel="noopener">prohibit drivers from browsing social media</a> or taking selfies (or other photos) while they’re behind the wheel.<a href="http://www.slate.com/blogs/future_tense/2016/09/21/google_s_new_messaging_app_allo_is_smart_but_should_you_use_it.html" target="_blank" rel="noopener">Should you download Allo</a>, Google’s new messaging app?Florida appeals court: A student’s tweet stating that he “can’t WAIT to shoot up [his] school” is not a criminal threat under Florida law.Available to consumers later this fall, Snapchat’s Spectacles are already raising the kinds of privacy concerns that plagued Google Glass.Will artificial intelligence and robots eliminate millions of jobs? Not if <a href="http://www.nytimes.com/2016/09/29/technology/protecting-humans-and-jobs-from-robots-is-5-tech-giants-goal.html?em_pos=small&emc=edit_tu_20160929&nl=bits&nl_art=0&nlid=69264395&ref=headline&te=1&_r=2" target="_blank" rel="noopener">these five tech giants</a> can help it.A tool is being developed <a href="https://www.engadget.com/2016/09/23/law-enforcement-may-target-hate-crime-by-analyzing-twitter/" target="_blank" rel="noopener">to help law enforcement scan Twitter</a> for signs of impending hate crime.<a href="https://techcrunch.com/2016/09/28/meetup-redesign/" target="_blank" rel="noopener">Meetup redesigned its mobile apps</a> and website.A rumination on <a href="https://techcrunch.com/2016/09/24/were-looking-at-cyberbullying-the-wrong-way/?ncid=rss&cps=gravity_1730_5836119583937591900" target="_blank" rel="noopener">cyberbullying, online anonymity and the dark side of human nature</a>.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Social Links: Facebook at Work; Google’s Allo messaging app; Snapchat’s Spectacles

Facebook at Work, the on-the-job version of the web’s most popular social media platform, will launch in London on October 10th. Add iHeartRadio to the list of 

Social Links: Facebook at Work; Google’s Allo messaging app; Snapchat’s Spectacles

We’re delighted to publish our Social Media Safety Guide for Companies, which highlights key considerations to keep in mind in using social media to promote your company’s products and services and to engage with customers.Social media has been referred to as the greatest development for marketers since the printing press, but the benefits of social media are not risk free; indeed, many companies have run into serious legal problems in their rush to take advantage of social media. Although not a substitute for advice from experienced legal counsel, our Guide is intended to highlight a number of emerging best practices for reducing U.S. legal risks in connection with corporate use of social media.

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Social Media Safety Guide for Companies

We’re delighted to publish our Social Media Safety Guide for Companies, which highlights key considerations to keep in mind in using social media to promote you

Social Media Safety Guide for Companies

The California Supreme Court <a href="http://www.latimes.com/business/technology/la-fi-tn-yelp-ava-bird-20160921-snap-story.html" target="_blank" rel="noopener">agreed to hear Yelp’s case</a> arguing that requiring the company to remove a one-star review of a law firm “creates a gaping hole” in the immunity that shields internet service providers from suits related to user-generated content.Images, videos and quoted tweets no longer count toward Twitter’s 140-charter limit.Google is undertaking <a href="https://www.wired.com/2016/09/inside-googles-internet-justice-league-ai-powered-war-trolls/" target="_blank" rel="noopener">cutting-edge efforts to battle online trolls</a>.Only <a href="http://www.wired.co.uk/article/north-korea-28-websites-domain" target="_blank" rel="noopener">28 websites are registered</a> under North Korea’s top level .kp domain.Chinese law enforcement agencies investigating criminal cases can now secretly <a href="http://www.bloomberg.com/news/articles/2016-09-22/tencent-s-wechat-social-media-posts-count-as-criminal-evidence" target="_blank" rel="noopener">request access to personal information</a> posted on social media services.Back here in the United States, Twitter’s bi-annual transparency report shows that between January and June the platform received 2,520 information requests from U.S. law enforcement agencies.The Department of Transportation issued <a href="http://www.nytimes.com/2016/09/21/technology/the-15-point-federal-checklist-for-self-driving-cars.html" target="_blank" rel="noopener">a 15-point list of safety expectations</a> for driverless cars.<a href="http://www.relationshipscience.com/" target="_blank" rel="noopener">Relationship Science</a>, a repository of information about influential people and their connections, is <a href="http://venturebeat.com/2016/09/20/relationship-science-takes-a-shot-at-linkedin-opens-its-database-to-everyone/" target="_blank" rel="noopener">opening its database to everyone</a>, a change that could put the company in competition with LinkedIn.Content marketers need to <a href="https://www.entrepreneur.com/article/280975?utm_content=buffer9c5cf&utm_medium=social&utm_source=twitter.com&utm_campaign=bufferrr" target="_blank" rel="noopener">publish how many articles a week</a> to make a difference?! Sigh.<a href="http://www.socialmediatoday.com/social-networks/ultimate-guide-building-your-audience-snapchat" target="_blank" rel="noopener">Building an audience on Snapchat</a> seems pretty arduous, too.Concerned that your identity may have been stolen in some of the major hacking attacks in the last three years? Take <a href="http://www.nytimes.com/interactive/2015/07/29/technology/personaltech/what-parts-of-your-information-have-been-exposed-to-hackers-quiz.html?smid=fb-nytimes&smtyp=cur&_r=0" target="_blank" rel="noopener">this quiz</a> to learn your minimum level of exposure and what you can do about it.The <a href="http://venturebeat.com/2016/09/20/5-bots-to-try-this-week-evabot-fashion-brobot-event-io-breakingsports-and-american-express/" target="_blank" rel="noopener">five most popular bots</a> on <a href="https://botlist.co/" target="_blank" rel="noopener">Botlist</a> last week.

Social Links: Yelp’s Communications Decency Act claim; Twitter loosens its character limit; building a Snapchat audience

The California Supreme Court agreed to hear Yelp’s case arguing that requiring the company to remove a one-star review of a law firm “creates a gaping hole” in 

Social Links: Yelp’s Communications Decency Act claim; Twitter loosens its character limit; building a Snapchat audience

The news has been filled this year with reports of ransomware attacks against companies and government agencies, including even law enforcement. Ransomware refers to a type of malware that encrypts or otherwise restricts access to a machine or device. As part of the attack, the attacker will demand that the victim pay a ransom in order to receive the encryption key or otherwise recover access to the compromised machine.The reality is that ransomware attacks have been proliferating against all types of companies and organizations. Ransomware is a profitable business for underground circles, and we expect to see continued targeting. Because these attacks may be isolated to a single machine, they frequently do not impact a company’s business continuity or result in a noticeable service disruption. In response to an infection, companies may be able to obtain the technical assistance needed to defeat the attack. Free online resources exist that will identify which ransomware infected your system and provide victims with known decryption keys. In other cases, companies may determine that the data loss is not significant and/or that backups exist, allowing them to rebuild the computer by reformatting the hard drive and reinstalling a clean operating system, applications and data. In other cases though, companies pay the ransom.Ransomware attackers frequently use many of the same tools and tactics, such as spear phishing, as do other hackers. Unlike many hackers, however, ransomware attackers are not focused on stealing data that can be sold or used for illicit purposes (e.g., credit card information and trade secrets). Instead, ransomware is about economic extortion. The attackers prevent a company from being able to access its own system or data, and they make a demand. Usually, they want money, but that could change. Imagine a hacker who holds data and systems hostage in return for the company’s releasing a public statement, making a divestiture or a arranging for a senior executive’s departure? The distinction between routine malware and ransomware is important to manage the scope of the threat. While some companies may not maintain data that is of value to cyber thieves (although that is becoming less and less the case, as evidenced by the proliferation of W-2 tax information phishing attacks), every company is a potential target of a ransomware attack.There are a couple of reasons why this is such a challenging problem to overcome from a technology perspective. Once the files are encrypted, it is nearly impossible to decrypt them. This leaves the affected organization facing the difficult choice of either paying the ransom or losing their data. In many cases, downtime and data loss are more costly than the ransom, which is why many organizations opt to pay. The second major challenge is that ransomware is highly polymorphic. There are tens of thousands of malware samples and variants detected in the wild.As a result, all companies should be mindful of the risk of such an attack and take steps to limit the impact of such an attack, including being prepared to respond.Responding to a ransomware attack can be a stressful and unnerving experience. Not surprisingly, depending on the system that is the target of the attack, time is usually of the essence. As part of a company’s broader incident response preparation, it is worth anticipating what you would do in the event of a ransomware attack. The following five questions are a good starting point for companies, and in-house counsel might consider leading this review together with their information security managers. While the answers to these questions often differ depending on the nuance or nature of a given attack, the investment in planning related to these questions can reduce the stress and increase the agility and effectiveness of a company’s response to an attack.1. Will You Pay The Ransom?This literally can be the million-dollar question, although ransom demands historically have been much smaller. For example, it is common to see ransom demands between $500 and $50,000, typically to be paid with Bitcoin. Regardless of the extortion level, many companies have taken the approach of not negotiating with blackmailers or otherwise paying ransom, regardless of the situation.  In fact, the FBI does not encourage payment.Still, even where there is a general (and understandable) resistance to paying ransom, the answer to this question for most companies will depend on the impact and timing of the attack. That is, the answer frequently depends on the business continuity risk and service disruption potential that the attack presents, as well as whether there is an available and useful backup of the data/service maintained by, or hosted on, the impacted system. More specifically, how badly does your company need the impacted system or the data stored on that system?For example, if a company cannot access a machine that has critical data for which there is no adequate or available backup, or if the machine is integral to business operation (e.g., a web server or payment service) and there are challenges in replacing the machine in a timely manner, a company may determine that it has little choice but to pay the ransom because the costs of lost access far outweigh the ransom demand. In many scenarios, however, companies have elected not to pay the ransom because they have a sufficient backup of data maintained on the machine or because the lost access to the system does not have a meaningful business impact. For example, from a business continuity perspective, there may be no practical difference between a ransomware attack that locks an employee’s company-issued laptop and the physical theft of that laptop.Significantly, paying does not always result in the hackers making good on their promise. In a recent case, a hacker only provided partial access to a hospital’s encrypted data before asking for more money to complete the deal.  At that point, the hospital refused.2. What Systems Are Subject to the Greatest Risk (And Are They Protected)?The first question highlights the critical, yet obvious, point that the potential impact of a ransomware attack all depends on which machine, system, or device is hit. It also highlights the fact that ransomware is not just an information security issue, but also a business continuity issue (not unlike, for example, natural disasters). On this point, a company should have the advantage over a ransomware attacker.Specifically, a company can assess its systems and dependencies and identify those that present the greatest risk to the company in the event of a ransomware attack. In fact, most companies with business continuity plans will have already gone through this exercise in a more general context.  Regardless, once you have identified systems that are critical to your company’s ongoing operations, you then can consider how those systems are currently protected from the types of malware typically deployed in a ransomware attack and whether additional protections make sense. In addition to having appropriate data backup and recovery plans in place, common information security considerations include:<ol><li>The use of robust endpoint detection and response (EDR) solutions,</li><li>Taking advantage of application white-listing,</li><li>Restricting user permissions and access controls,</li><li>Implementing software restriction policies (SRP),</li><li>Ramping up efforts to detect spear-phishing emails and</li><li>Disabling macros from running in files that are received in email or downloaded from websites.</li></ol>3. Do You Have Sufficient Backups?While the previous question was focused on the extent to which critical systems are protected, this question is focused on contingency planning in the event that a company is the victim of a successful ransomware attack. If critical systems are impacted by ransomware, how will your company respond, and will you be able to continue (somewhat) normal business operations? This is an important question, even if your company would consider paying the ransom. For example, even if a company pays the ransom, there will be a loss of data or availability until the key is received and, hopefully, normal access is restored. As a result, from both a data and a systems perspective, it is important to determine the extent of a company’s backups and alternatives that can support business operations. A company should consider not only the extent of its backups, but how frequently those backups are created and tested and whether the backups themselves are susceptible to being encrypted or deleted by the hacker. This will help determine the scope of the data loss at risk in the event of an attack. Similarly, a company should consider its process for restoring data from backup (or switching to backup systems) and whether that process can be simplified or made more efficient.4. Will You Make The Attack Public?It can be helpful to consider whether, or the circumstances when, your company would make public that it has been the victim of a ransomware attack. Most companies that have gone public with the fact that they were the victim of an attack appeared to do so because the attack significantly impacted their normal business operations and there was a delay in restoring those operations.If normal business operations are impacted, there is a question of how you communicate that fact to customers, vendors, business partners and the public generally. For example, if a company will pay the ransom and expects to restore operations within a relatively short time but feels that it is important to communicate to relevant third parties that certain systems are down, does the communication have to highlight the cause of the issue, or can it simply identify the impact? For example, a company could indicate that it is aware of the problem, it is working to address it and when it expects the issue to be resolved. While the nuance of an attack (e.g., the impact and duration) is incredibly important to answering this question, the answer can be equally nuanced. For example, a company may elect to alert third parties only where there is a contractual requirement to do so, keeping in mind that a ransomware attack typically does not include a data breach. Regardless, it is important for a company to consider its communication strategy in the event of an attack. Some companies may even want to take the next step and prepare standby statements that can be used if needed, for example, in response to a third party or even an employee, revealing the incident.5. Will You Contact Law Enforcement?A question companies frequently consider in the context of a ransomware attack (and cybersecurity incidents generally) is whether to contact law enforcement and, if so, which law enforcement agency. The answer will be company-specific and depend on a number of factors. Nonetheless, it is important for a company to identify and understand the reasons why it would contact law enforcement in the event of an attack. Not surprisingly, the likelihood of achieving the desired objective varies significantly based on the reason for contacting law enforcement.A company may contact law enforcement because it wants the attacker brought to justice or because it hopes that there may be technical assistance that law enforcement can provide to help the company regain control of the relevant machine (and avoid paying the ransom). While the facts are always critical, these may not be the primary reasons to contact law enforcement, because the likelihood of law enforcement catching what is likely a foreign actor may be slim; similarly, law enforcement may not have the capability to crack the encryption, and the facts may not warrant law enforcement investing resources in that effort.A company, however, may contact law enforcement for other reasons. For example, a company may contact law enforcement because, if the attack becomes public, the company can reassure customers, vendors, business partners or even regulators that it did everything possible to respond to the attack. For many types of public cybersecurity incidents, it has become standard for a company to indicate that it has notified law enforcement and is cooperating with the investigation. This also highlights the fact that the company is a victim. In some instances, a company may contact law enforcement because its cyber response policies indicate that law enforcement should be contacted or because it has become standard practice for the company in responding to cyber incidents. A company may also contact law enforcement because the company believes that “it is the right thing to do” as a good corporate citizen. Finally, a company’s cyber insurance policy may require that suspected crimes be reported to law enforcement in order to make a claim for coverage. For each of these reasons, a company may conclude that it is in its best interest to contact law enforcement, even though it believes that the criminal will not ultimately be caught.The question of which law enforcement agency to contact is heavily dependent on the facts, including the type of company impacted, the threat actor, the type of machine impacted and the nature of that impact; a detailed discussion is beyond the scope of this article. For example, if a significant ransomware attack impacts critical infrastructure or a federally regulated entity (e.g., a national bank or an airline), the company should contact federal law enforcement, such as the FBI. If a ransomware attack hits a small hardware store, however, the company should instead consider contacting local law enforcement or using online reporting through the Internet Crime Complaint Center at <a style="font-weight: inherit;font-style: inherit;" href="http://www.ic3.gov/" target="_blank" rel="noopener">www.ic3.gov</a>.Moving ForwardUnfortunately, ransomware is costing businesses hundreds of millions of dollars annually, whether in the form of payments, intrusion response or both.  By definition, you cannot prepare after an event. By asking and answering these five questions early enough, you can arrive at a risk posture that is suitable for your business. Hopefully you will never experience a problem.  However, should a ransomware incident occur, you will have increased options for managing the event and quickly getting back to business.This piece was originally shared on <a href="https://protect-us.mimecast.com/s/K2JZB7UoM3x8Fg">Corporate Compliance Insights</a> and is republished here with permission.

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Recognized as an authority on financial privacy issues, Nathan helps financial institutions and other companies develop practical solutions for complying with privacy and data security laws. In partic

Nathan D. Taylor

Nathan Taylor

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5 Questions to Help Prepare for a Ransomware Attack

5 Questions to Help Prepare for a Ransomware Attack

The news has been filled this year with reports of ransomware attacks against companies and government agencies, including even law enforcement. Ransomware refe

Our Morrison & Foerster colleague and Socially Aware contributor Miriam Wugmeister has published a thought provoking and insightful op-ed piece in The Hill on how companies that are the targets of cyberattacks are too often treated as suspects, rather than victims, by regulators.In her op-ed, titled Stop Victim Shaming in Cyberattacks, Miriam points out that defending the American people and economy from hostile state or state-sponsored actors is critical for both economic and national security reasons. However, while our state and federal law enforcement agencies vigorously protect people from criminals and assist victims of crimes, companies that publicly disclose that they have been the victim of a cybercrime are not treated like a typical victim by federal and state regulators. Instead, they are investigated by numerous agencies, including the Federal Trade Commission, the State Attorneys General, and the Security and Exchange Commission, while often simultaneously sued by consumers, business customers, and shareholders. In the face of the onslaught of cyber threats, U.S. companies are charged with defending themselves in cyberspace or facing legal liability.

Cybercrime and Victim Shaming

Our Morrison & Foerster colleague and Socially Aware contributor Miriam Wugmeister has published a thought provoking and insightful op-ed piece in The Hill on h

Cybercrime and Victim Shaming

<a href="http://www.businessinsider.com/instagram-lets-you-hide-inappropriate-comments-2016-9" target="_blank" rel="noopener">Instagram now allows users to hide offensive comments</a> posted to their feeds. Take that trolls!Soon you’ll be able to watch Twitter content like NFL Thursday Night Football on <a href="https://techcrunch.com/2016/09/14/twitter-launches-on-apple-tv-fire-tv-and-xbox-one/" target="_blank" rel="noopener">a Twitter app on Apple TV, Xbox One and Amazon Fire TV</a>.“Ballot selfie” laws—laws that prohibit posting online photos of completed election ballots—are being challenged in Michigan and <a href="https://www.bostonglobe.com/news/politics/2016/09/13/federal-court-hears-challenge-ballot-selfie-law/IvfIzaZLriQS5DQVGzSJeN/story.html" target="_blank" rel="noopener">New Hampshire</a>.Google may be <a href="http://www.independent.co.uk/life-style/gadgets-and-tech/news/google-voice-search-records-stores-conversation-people-have-around-their-phones-but-files-can-be-a7059376.html" target="_blank" rel="noopener">recording you regularly</a>.YouTube content creators can now <a href="http://www.androidauthority.com/youtube-community-beta-launches-716334/" target="_blank" rel="noopener">communicate with their followers in real time</a>.AdBlock Plus has launched <a href="http://www.theverge.com/platform/amp/2016/9/13/12890050/adblock-plus-now-sells-ads" target="_blank" rel="noopener">a service that allows website operators to display “acceptable” ads</a> to visitors using the popular ad blocking software. Irony, anyone?The EU might soon require the same things of chat apps like Skype that it <a href="http://www.wsj.com/articles/eu-to-get-tough-on-chat-apps-in-win-for-telecoms-1473607662" target="_blank" rel="noopener">requires of telecom businesses</a>.A controversial proposal aims to give the EU’s 500 million consumers <a href="http://www.nytimes.com/2016/09/15/business/international/eu-tv-online-streaming-bbc-netflix.html?emc=edit_tu_20160915&nl=bits&nlid=69264395&te=1" target="_blank" rel="noopener">more digital streaming content choices</a>.An Austrian teen whose parents overshared on social media <a href="http://www.dailydot.com/irl/facebook-photo-lawsuit-austria/" target="_blank" rel="noopener">looks to the law for recourse</a>.Baltimore County officials warned government employees to watch what they say on social media.With so many alternative content providers around these days, <a href="http://www.nytimes.com/2016/07/15/technology/television-the-social-medium.html?emc=edit_tu_20160915&nl=bits&nlid=69264395&te=1&_r=1" target="_blank" rel="noopener">why do we still watch so much TV</a>?Here’s a list of 50 Snapchat marketing influencers who Mashable says are worth following.

Social Links: Instagram’s “offensive comment” filter; Twitter’s TV app; YouTube’s “Community” feature

Instagram now allows users to hide offensive comments posted to their feeds. Take that trolls! Soon you’ll be able to watch Twitter content like NFL Thursday Ni

Social Links: Instagram’s “offensive comment” filter; Twitter’s TV app; YouTube’s “Community” feature

Recent enforcement decisions within the digital advertising industry indicate a shift in—and a clarification of—the required disclosures for companies engaged in interest-based advertising (IBA).In particular, these decisions, taken together, indicate that an app developer’s link to its privacy policy at the point of app download may be deemed insufficient, unless the link points directly to the IBA disclosure section of the policy, or there is a clear link at the top of the policy that directs the user to that section.Further, these decisions suggest that companies that comply with the digital advertising industry’s IBA self-regulatory principles should expressly affirm such compliance in their privacy policies.BackgroundSome quick background: IBA is the collection of information about users’ online activities across different websites or mobile applications, over time, for the purpose of delivering online advertising to those users based on those activities. Although IBA is an important part of the online eco-system, if not done right, it can raise privacy concerns among consumers, who may feel that they are being spied upon by advertisers.The Digital Advertising Alliance (DAA) has worked to ensure that IBA is done right. The DAA is a consortium of media and marketing associations that, in an effort to ward off legislation, has designed and implemented a <a href="http://www.aboutads.info/resource/download/seven-principles-07-01-09.pdf" target="_blank" rel="noopener">self-regulatory compliance regime</a> that seeks to address the Federal Trade Commission’s (FTC) IBA notice and choice expectations. The principles underlying this compliance regime are set out in the DAA’s <a href="http://digitaladvertisingalliance.org/principles" target="_blank" rel="noopener">Self-Regulatory Principles </a>(“DAA Principles”). The DAA enforces these principles through the IBA accountability program, run by the Council of Better Business Bureaus and the Direct Marketing Association.The DAA self-regulatory program is, at its heart, a notice-and-choice regime. In short, to facilitate such notice and choice, the DAA provides an advertising option icon to be placed in or near an online interest-based ad. By clicking on the icon, a consumer is sent to a landing page that describes the data collection practices associated with the ad and provides an opt-out mechanism.Importantly, however, the DAA Principles have also been interpreted by the IBA accountability program to require “enhanced” notice on any website where information is collected for IBA purposes. In response to this interpretation, website publishers typically provide such notice in the form of an “Our Ads” or similarly named link in the site footer, separate from the privacy policy link, that clicks through to the same landing page as the advertising option icon, or to similar notice and choice information.The Recent DecisionsIn its recent enforcement actions, the IBA accountability program appears to have exported this manifestation of the enhanced notice requirement to mobile applications, notwithstanding the provisions of the DAA’s guidance on the <a href="http://www.aboutads.info/DAA_Mobile_Guidance.pdf" target="_blank" rel="noopener">Application of Self-Regulatory Principles to the Mobile Environment</a>, first published in 2013.That guidance expressly provides that app publishers (i.e., “first parties”) that permit third parties to collect information for IBA purposes must “provide a clear, meaningful, and prominent link to a disclosure that either points to a choice mechanism or setting that meets Digital Advertising Alliance specifications or individually lists such Third Parties.” This notice must be provided in two separate locations:<ul><li>Either prior to download (e.g., in the app store on the application’s page), during download, on first opening of the app, or at the time cross-app data is first collected; and</li></ul><ul><li>In the application’s settings or any privacy policy.</li></ul>The IBA accountability program appears, however, to be taking the position that a link to the privacy policy from the app store (or any other location) is not enough to meet this first prong.  That is, a “clear, meaningful, and prominent link” to the IBA disclosure must be a link directly to the IBA section of the privacy policy, in the same way that the “Our Ads” or similarly named link in the site footer clicks through to the IBA section of the privacy policy.The IBA accountability program’s Spinrilla decision, for example, states that the accountability program could not find an “enhanced link notice separate from the privacy policy link” in the applicable app stores and affirmed that if only one privacy policy link will be used in the app store (where it is typically not possible to provide two separate links), “the link to the privacy policy must either go directly to the pertinent discussion of IBA or direct the user to that place through a clear link at the top of the privacy policy.”The other accountability program decisions, Bearbit Studios and Top Free Games, reaffirm this interpretation. In light of these decisions, app publishers may want to revisit how they provide “enhanced notice” of their IBA practices.Finally, the Mobile Guidance states that first parties should “indicate adherence” to the DAA Principles in their privacy policies. The accountability program decisions noted the absence of this language in the companies’ privacy policies, and the companies appear to have added language to their disclosures to comply with this obligation. Whether a company would want to affirmatively make this representation of its own accord is something that may warrant additional consideration, as the company’s failure to fully comply with such a representation could give rise to a charge of deception under Section 5 of the FTC Act or a similar state law.The UpshotIn light of these developments, a company engaged in IBA should:<ul><li>If engaged in IBA with respect to one or more of its apps, review how it discloses its IBA practices at the point of app download; and</li></ul><ul><li>Discuss with counsel the advisability of expressly stating adherence to the DAA Principles in its privacy policy.</li></ul> *                      *                     * For background information on the DAA program and its applicability to the mobile environment, please see our earlier Socially Aware blog post, <a href="https://www.sociallyawareblog.com/2015/06/19/digital-advertising-alliance-focuses-on-mobile-ads/" target="_blank" rel="noopener">Digital Advertising Alliance Focuses on Mobile Ads</a>. For more on consumer privacy issues generally, please see the following posts: <a href="https://www.sociallyawareblog.com/2013/10/30/a-warning-for-websites-allowing-data-collection-for-online-behavioral-advertising/" target="_blank" rel="noopener">A Warning for Websites Allowing Data Collection for Online Behavioral Advertising</a>; <a href="https://www.sociallyawareblog.com/2012/04/10/ftcs-privacy-report-suggests-tightening-of-privacy-regime-provides-guidance-to-business/" target="_blank" rel="noopener">FTC’s Privacy Report Suggests Tightening of Privacy Regime, Provides Guidance to Business</a>; and Tracking the Trackers: Social Media Companies Face Pressure for Tracking Users’ Browsing Habits.

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Julie O'Neill

Interest-Based Advertising Disclosure Requirements Become More Clear—and Potentially More Burdensome