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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Partner

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

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.

Social Links: Going Back to Cali

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Social Links is our ongoing series here at Socially Aware that rounds up current developments at the intersection of social media, policy, research, and the law.Embedding social media posts can be considered copyright infringement…but is it?A Manhattan federal judge <a rel="noopener" target="_blank" href="https://www.rangefinderonline.com/news-features/industry-news/judge-sides-with-photographer-in-instagram-embed-lawsuit/">ruled in August</a> 2021 that the practice of embedding social media posts on third-party websites, without permission from the content owner, could violate the owner’s copyright.The case centered around a 2017 video of a starving polar bear that nature photographer Paul Nicklen took and posted on his Instagram and Facebook accounts. Its purpose was to highlight the effects of global warming. When the image went viral, Sinclair Broadcasting Group published an article about it and embedded Nicklen’s post without obtaining his permission.<a rel="noopener" target="_blank" href="https://www.thompsoncoburn.com/docs/default-source/default-document-library/08-02-21nicklin.pdf">In reaching his decision</a>, U.S. District Judge Jed Rakoff <a rel="noopener" target="_blank" href="https://www.reuters.com/legal/transactional/manhattan-judge-rejects-server-test-internet-copyright-infringement-2021-07-30/">rejected the “server test” from the 9th Circuit Court of Appeals</a>, which generally holds that embedding content from a third party’s social media account only violates the content owner’s copyright if a copy is stored on the defendant’s servers.A recent decision on this very topic, however, reveals a different perspective on embedding practices and the “server test.” Reuters reports that a <a rel="noopener" target="_blank" href="https://www.reuters.com/legal/transactional/instagram-dodges-photogs-copyright-lawsuit-over-embedding-feature-2021-09-20/">San Francisco federal court rejected a group of photographers’ claim</a>s that Instagram’s embedding tool infringed on their copyrights. <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/egpbkyoxrvq/IP%20INSTAGRAM%20COPYRIGHT%20order.pdf">Judge Charles Breyer of the U.S. District Court for the Northern District of California ruled that</a> “the Instagram feature doesn’t violate the photographers’ exclusive right to display the pictures publicly because third-party websites that embed the images don’t store their own copies of them.” This decision is second in a series that rejects the “server test” cited above.Photographers Alexis Hunley and Matthew Brauer led the <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/bdwpkwbmepm/frankel-instagram--classcomplaint.pdf">class action complaint</a> in May, followed by Instagram’s <a rel="noopener" target="_blank" href="https://fingfx.thomsonreuters.com/gfx/legaldocs/lgvdwkozypo/IP%20INSTAGRAM%20COPYRIGHT%20mtd.pdf">move to dismiss in July</a>. According to Reuters, Judge Breyer noted that “Because they do not store the images and videos, they do not ‘fix’ the copyrighted work in any “tangible medium of expression…. Therefore, when they embed the images and videos, they do not display ‘copies’ of the copyrighted work.”These decisions will most likely end in appeals. We will continue to monitor the developments as they unfold.Harnessing the wisdom – and skills – of the crowd to combat social media’s trust issuesElections, COVID-19 vaccinations, Gabrielle Petito and Brian Laundrie’s disappearance, conspiracy theories about other missing persons: each represents a category that has cast social media platforms under intense scrutiny about their handling of the information – or misinformation – that is published and appears across the social media landscape.While social media platforms employ fact checkers to validate the veracity of posts, the staggering volume of posts on any given day makes it impossible for them to employ enough people to confirm or reject every entry on every channel globally, 24/7. Scale, not to mention cost, remains the central issue.A <a rel="noopener" target="_blank" href="https://www.wired.com/story/could-wisdom-of-crowds-help-fix-social-media-trust-problem/">recent Wired article</a> suggests that using the “wisdom of the crowds” – groups of lay people – often matches or surpasses the accuracy that professional fact checkers provide. In addition to cost savings, <a rel="noopener" target="_blank" href="https://www.science.org/doi/10.1126/sciadv.abf4393">this model also offers something that professional fact checker programs do not: scalability</a>.These issues around trust and misinformation on social media platforms will continue to dominate headlines across technological, legal, and public opinion forums.Social media algorithms result in surprising and unexpected moments for those grieving lost loved ones and friendsMany of us have experienced moments when social media serves up posts, memories, or birthday reminders of those who have passed. <a rel="noopener" target="_blank" href="https://www.wired.com/story/social-media-algorithms-are-controlling-how-i-grieve/">A recent Wired article</a> explores the emotional and psychological effects of those on the receiving end of such social media notices. Particularly in the COVID-19 era, when many have experienced sudden losses of loved ones, friends, and family members, social media platforms have provided much-needed forums for those wanting to share news, information, tributes, memorials, and memories of those who have passed. Many of the major social media outlets have mechanisms and settings to help family members and friends manage their deceased loved ones’ accounts in respectful ways. Facebook offers both <a rel="noopener" target="_blank" href="https://www.facebook.com/help/1017717331640041/">memorialized accounts</a> and <a rel="noopener" target="_blank" href="https://www.facebook.com/help/1568013990080948">legacy contact settings</a>; Instagram provides similar <a rel="noopener" target="_blank" href="https://help.instagram.com/231764660354188">memorialization settings</a>; and Twitter has <a rel="noopener" target="_blank" href="https://help.twitter.com/en/rules-and-policies/contact-twitter-about-a-deceased-family-members-account">processes in place</a> to work with an authorized estate representative to deactivate an account. Google <a rel="noopener" target="_blank" href="https://www.cnbc.com/2019/05/28/how-to-set-google-to-delete-everything-after-i-die.html">provides a similarly robust program</a>, allowing individuals to designate “digital beneficiaries” who will act on their behalf to manage their accounts once they’ve passed.While none of us wants to think about end-of-life directives, taking into consideration the digital footprint that we leave behind on social media as part of our legacy is another factor in the technological landscape where we live today.Young people, social media, and emerging from COVID-19Much has been written in the last 18 months about the effects that COVID-19 has had on all of us, but in particular, on the youth in the United States. Common Sense, Hopelab, and the California Healthcare Foundation published Coping with COVID-19: How Young People Use Digital Media to Manage Their Mental Health earlier this year. It examined how youth used social media and other online tools to cope with the separation and isolation from friends and other social structures that are vital to their intellectual, social, and emotional development.While depression is on the rise among young people (as this infographic explains), there’s good news on the horizon. Recent analyses have noticed <a rel="noopener" target="_blank" href="https://onezero.medium.com/maybe-social-media-isnt-making-teens-depressed-after-all-and-here-s-what-likely-is-bb49651cda16">positive trends among young people with decreased levels of depression</a> and cited two major factors that occurred during the pandemic: teens are getting more sleep, and they’re spending more time with family.In addition, GLAAD (formerly known as the Gay and Lesbian Alliance Against Defamation) recently published its first-ever Social Media Safety Index report that examined social media platforms and LGBTQ+ youths’ involvement and usage. While the report cited an <a rel="noopener" target="_blank" href="https://www.glaad.org/smsi">increase in hate speech and other hostile forums</a> on social media, other analysts provided a more nuanced interpretation, citing that <a rel="noopener" target="_blank" href="https://onezero.medium.com/social-media-when-youre-queer-hazard-or-haven-ab01dfc53611">social media platforms provide a much-needed lifeline for LGBTQ+ youth as they seek information and support</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

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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.











Anthony Ramirez

Social Links: Embedding social media posts can be considered copyright infringement…but is it?

Social Links is our ongoing series here at Socially Aware that rounds up current developments at the intersection of social media, policy, research, and the law

Social Links: Embedding social media posts can be considered copyright infringement…but is it?

<a href="http://gothamist.com/2019/02/28/revenge_porn_ny_law.php" target="_blank" rel="noopener">New York is now one</a> of the <a href="https://www.cybercivilrights.org/revenge-porn-laws/" target="_blank" rel="noopener">43 states where “revenge porn,”</a> the posting of explicit photographs or videos to the Internet without the subject’s consent, is punishable by law. See how far the states have come – find out how many had criminalized revenge porn as of 2014, <a href="https://www.sociallyawareblog.com/2014/01/29/keeping-privates-private-the-legal-landscape-of-revenge-porn/" target="_blank" rel="noopener">when Socially Aware first covered the issue</a>.YouTube announced that it will not allow channels that promote anti-vaccination videos to run advertisements because such videos violate the platform’s policy, which, among other things, disallows the monetization of “dangerous content.” Many of the companies whose ads appeared alongside anti-vaccination content say they were not aware it was happening. <a href="https://www.buzzfeednews.com/article/carolineodonovan/youtube-just-demonetized-anti-vax-channels" target="_blank" rel="noopener">Find out how that could be possible</a>.Senator John Kennedy (R-LA) has introduced<a href="https://www.kennedy.senate.gov/public/_cache/files/9/f/9ff92982-1a58-4cf5-9bda-8530e5078224/2D6F1D231B87F5B281A01893CEAA75DF.sil19328-own-your-own-data-.pdf" target="_blank" rel="noopener"> a bill that would give Internet users considerably more control over their personal data</a> by mandating that social media companies inform registrants—in simple, easy-to-understand terms—that they are entering into an agreement licensing their personal data to the company. Coined the Own Your Own Data Act, the legislation would also require social media platforms to make it easy for their registrants to cancel the licensing agreement and obtain the collected data and any analysis of it.Another privacy bill, this one proposed by Senators Ed Markey (D-MA) and Josh Hawley (R-MO), would amend the <a href="https://www.sociallyawareblog.com/2019/03/08/thank-you-next-enforcement-music-video-app-violates-coppa-will-pay-5-7-million/" target="_blank" rel="noopener">Children’s Online Privacy Protection Act</a> (COPPA) to completely prohibit the running of targeted advertisements on websites targeted to children. Find out <a href="https://www.engadget.com/2019/03/12/senate-markey-hawley-children-privacy-bill/" target="_blank" rel="noopener">how else the bill would amend COPPA, and how long companies would have to comply</a> with the amendment if it became law.The debate over <a href="https://www.postandcourier.com/opinion/courts-right-to-side-with-free-speech/article_4d227fa0-45d6-11e9-9b21-cf4244cb43d3.html" target="_blank" rel="noopener">whether politicians have a right to block people on social media</a> rages on.The United States isn’t the only country whose <a href="https://www.economist.com/the-americas/2019/03/16/jair-bolsonaro-brazils-president-is-a-master-of-social-media" target="_blank" rel="noopener">president favors social media</a> as a vehicle for sharing his views.A <a href="https://abovethelaw.com/2019/03/twitterlaw/" target="_blank" rel="noopener">#TwitterLaw symposium</a> is being held at the University of Idaho College of Law next month. Road trip, anyone?Even the <a href="https://www.harpersbazaar.com/celebrity/latest/a26621439/royal-family-social-media-guidelines/" target="_blank" rel="noopener">British Royal Family has to contend with social media trolls</a>.

YouTube disallows ads on anti-vax content; privacy bills aim to extend children’s protections from Internet harm, secure users’ control over data

New York is now one of the 43 states where “revenge porn,” the posting of explicit photographs or videos to the Internet without the subject’s consent, is punis

YouTube disallows ads on anti-vax content; privacy bills aim to extend children’s protections from Internet harm, secure users’ control over data

The U.S. Supreme Court on Oct. 16, 2017, announced it had <a href="https://www.lexislegalnews.com/mealeys-data-privacy/articles/21241/supreme-court-to-hear-case-on-foreign-application-of-stored-communications-act" target="_blank" rel="noopener noreferrer">granted the government’s petition for certiorari</a> in <a href="https://www.leagle.com/decision/infco20160714063" target="_blank" rel="noopener noreferrer">United States v. Microsoft </a>and will hear a case this Term that could have lasting implications for how technology companies interact with the U.S government and governments overseas. At issue is a consequential Second Circuit decision from last year that held that warrants issued under the <a href="https://www.law.cornell.edu/uscode/text/18/2703" target="_blank" rel="noopener noreferrer">Stored Communications Act</a> (SCA) do not reach emails and other user data stored overseas by a U.S. provider.While no federal appellate court besides the Second Circuit has squarely addressed the issue, multiple district courts outside the Second Circuit have declined to follow the Second Circuit’s reasoning in similar fact patterns involving other technology giants. The result is that U.S. law enforcement has different authority to access foreign-stored user data depending on where in the United States a warrant application is made. Google, for example, has expended significant resources to develop new tools to determine the geographic location of its users’ data so as to be in accord with the Second Circuit’s approach. Yet the company currently <a href="https://arstechnica.com/wp-content/uploads/2017/09/fedsgoogflap.pdf" target="_blank" rel="noopener noreferrer">faces a hearing on sanctions for its alleged willful noncompliance with law enforcement requests in the Ninth Circuit</a> based on a district court ruling that parted ways with the Second Circuit.DOJ has gone to great lengths to challenge the Microsoft ruling since its issuance, including pushing for en banc review and seeking to distinguish it in other federal courts. In its petition for certiorari, DOJ contended that the Second Circuit’s decision puts at risk DOJ’s ability to access information that could be critical to uncovering and prosecuting serious crimes. DOJ further contended that the Second Circuit’s analysis rests on a misreading of the statute because the information sought in the warrant—far from requiring extraterritorial application of the statute—could be accessed by Microsoft’s U.S. employees with the click of a mouse. There is also a concern that the Second Circuit ruling will create incentives for “data localization” regimes in which countries insist that data pertaining to their nationals must be stored locally.To Microsoft and other technology companies, on the other hand, the Second Circuit ruling represented the best reading of the SCA—a 1986 law that did not contemplate the current technology landscape—and afforded a measure of protection against the risk they would find themselves subject to conflicting directives under U.S. law and the law of the country where the data is stored. Microsoft’s victory below was embraced by privacy advocates. Microsoft also opposed certiorari on the grounds that to the extent revisions to the SCA were necessary to enable it to apply extraterritorially, the issue was better left to Congress than the courts.Whatever the Supreme Court decides, the case bears close watching as the Second Circuit ruling continues to have serious implications not just for the government but for the U.S. companies that store data and interact with regulators overseas. The case will likely be argued in early 2018 and decided by the end of June.*                   *                  *For other Socially Aware posts addressing user data and the Stored Communications Act, please see the following: <a href="http://www.sociallyawareblog.com/2017/02/23/google-ordered-foreign-stored-user-data/">Google Ordered to Comply with Warrant for Foreign-Stored User Data</a>; <a href="http://www.sociallyawareblog.com/2017/05/03/court-orders-google-foreign-stored-data/#more-6782" target="_self">Court Orders Google to Turn Over Foreign-Stored Data</a>; <a href="http://www.sociallyawareblog.com/2016/10/25/email-outside-us/">Second Circuit: Email Stored Outside the U.S. Might Be Beyond Government’s Reach</a>; and <a href="http://www.sociallyawareblog.com/2012/07/23/weve-come-for-your-tweets-twitter-to-appeal-denial-of-its-motion-to-quash-district-attorneys-subpoena/">We’ve Come for Your Tweets: Twitter to Appeal Denial of Its Motion To Quash District Attorney’s Subpoena</a>.

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SCOTUS to Resolve Lower-Court Dispute Over U.S. Warrants Seeking Foreign-Stored User Data

SCOTUS to Resolve Lower-Court Dispute Over U.S. Warrants Seeking Foreign-Stored User Data

The U.S. Supreme Court on Oct. 16, 2017, announced it had granted the government’s petition for certiorari in United States v. Microsoft and will hear a case th

Because it bases its assessments on job title, location and industry, LinkedIn’s new Salary feature might be more accurate than are other online compensation estimation tools.States are trying to pass laws that balance bereaved people’s desire to access their deceased loved ones’ social media accounts with the privacy interests of the account holders and the people with whom they corresponded. Without such laws, access to a deceased person’s digital assets might depend on the various social media platforms’ terms of use.In lawsuits, social media has occasionally made it easier to serve process on adverse parties, but it has also made it more difficult to ensure that jurors remain unbiased.A UK company wants to set car insurance premiums using an algorithm that analyzes car owners’ Facebook posts for pertinent personality traits?! The plan likely won’t go far; it violates Facebook’s platform policy.Kenya deported a registered refugee for posting to social media his support of the U.N. secretary-general’s firing of a Kenyan commander of a peacekeeping mission in South Sudan, the refugee’s native country.Thinking of posting a photo of yourself in the voting booth on Tuesday? Not so fast. In many states it’s illegal to share on social media photos of completed ballots and photos of yourself inside a voting booth. Courts all over the U.S. are hearing challenges to these so-called “ballot selfie” laws.Does a lawyer violate ethics rules by purchasing the names of competing lawyers or law firms as keywords that improve the purchasing lawyer’s own rank in Google search results?In the three years since its launch, an app called Scholly, which matches students with a personalized list of scholarships, has been downloaded over a million times. Here’s some advice for other social entrepreneurs from the company’s 25-year-old founder and CEO.Some researchers believe the likes, status updates and photos posted to social media platforms will someday be the source material for breakthroughs in the field of psychiatry.A UK solicitor was fined by a professional conduct regulator for posting a series of “unprofessional and offensive” tweets bragging about his victory over vulnerable adversaries.

Social Links: LinkedIn’s new feature estimates salaries; states grapple with digital-asset-inheritance laws; insurance company wants to base rates on applicants’ Facebook posts

Because it bases its assessments on job title, location and industry, LinkedIn’s new Salary feature might be more accurate than are other online compensation est

Social Links: LinkedIn’s new feature estimates salaries; states grapple with digital-asset-inheritance laws; insurance company wants to base rates on applicants’ Facebook posts

Deluged with an unprecedented amount of information available for analysis, companies in just about every industry are discovering increasingly sophisticated ways to make market observations, predictions and evaluations. Big Data can help companies make decisions ranging from which candidates to hire to which consumers should receive a special promotional offer. As a powerful tool for social good, Big Data can bring new opportunities for advancement to underserved populations, increase productivity and make markets more efficient.But if it’s not handled with care, Big Data has the potential to turn into a big problem. Increasingly, regulators like the Federal Trade Commission (FTC) are cautioning that the use of Big Data might perpetuate and even amplify societal biases by screening out certain groups from opportunities for employment, credit or other forms of advancement. To achieve the full potential of Big Data, and mitigate the risks, it is important to address the potential for “disparate impact.”Disparate impact is a well-established legal theory under which companies can be held liable for discrimination for what might seem like neutral business practices, such as methods of screening candidates or consumers. If these practices have a disproportionate adverse impact on individuals based on race, age, gender or other protected characteristics, a company may find itself liable for unlawful discrimination even if it had no idea that its practices were discriminatory. In cases involving disparate impact, plaintiffs do not have to show that a defendant company intended to discriminate—just that its policies or actions had the discriminatory effect of excluding protected classes of people from key opportunities.As the era of Big Data progresses, companies could expose themselves to discrimination claims if they are not on high alert for Big Data’s potential pitfalls. More than ever, now is the time for companies to adopt a more rigorous and thoughtful approach to data.Consider a simple hypothetical: Based on internal research showing that employees who live closer to work stay at the company longer, a company formulates a policy to screen potential employees by their zip code. If the effect of the policy disproportionately excludes classes of people based on, say, their race—and if there is not another means to achieve the same goal with a smaller disparate impact—that policy might trigger claims of discrimination.Making matters more complex, companies have to be increasingly aware of the implications of using data they buy from third parties. A company that buys data to verify the creditworthiness of consumers, for example, might be held liable if it uses the data in a way that has a disparate impact on protected classes of people.Expanding Uses of Disparate ImpactFor decades, disparate-impact theories have been used to challenge policies that excluded classes of people in high-stakes areas such as employment and credit. The Supreme Court embraced the theory for the first time in a 1971 employment case called <a href="http://www.naacpldf.org/case/griggs-v-duke-power-co" target="_blank" rel="noopener">Griggs v. Duke Power Co.</a>, which challenged the company’s requirement that workers pass intelligence tests and have high school diplomas. The court found that the requirement violated Title VII of the Civil Rights Act of 1964 because it effectively excluded African-Americans and there was not a genuine business need for it. In addition, courts have allowed the disparate-impact theory in cases brought under the Americans with Disabilities Act and the Age Discrimination in Employment Act.The theory is actively litigated today and has been expanding into new areas. Last year, for example, the Supreme Court held that claims using the disparate-impact theory can be brought under the Fair Housing Act.In recent years, the FTC has brought several actions under the disparate-impact theory to address inequities in the consumer-credit markets. In 2008, for example, the agency challenged the policies of a home-mortgage lender, Gateway Funding Diversified Mortgage Services, which gave its loan officers autonomy to charge applicants discretionary overages. The policy, according to the FTC, had a disparate impact on African-American and Hispanic applicants, who were charged higher overages than whites, in violation of the Federal Trade Commission Act and the Equal Credit Opportunity Act.The Good and Bad Impact of Big DataAs the amount of data about individuals continues to increase exponentially, and companies continue to find new ways to use that data, regulators suggest that more claims of disparate impact could arise. In a report issued in January, the FTC expressed concerns about how data is collected and used. Specifically, it warned companies to consider the representativeness of their data and the hidden biases in their data sets and algorithms.Similarly, the White House has also shown concern about Big Data’s use. In a report issued last year on Big Data and its impact on differential pricing—the practice of selling the same product to different customers at different prices—President Barack Obama’s Council of Economic Advisers warned: “Big Data could lead to disparate impacts by providing sellers with more variables to choose from, some of which will be correlated with membership in a protected class.”Meanwhile, the European Union’s Article 29 Data Protection Working Party has cautioned that Big Data practices raise important social, legal and ethical questions related to the protection of individual rights.To be sure, government officials also acknowledge the benefits that Big Data can bring. The FTC in its report noted that companies have used data to bring more credit opportunities to low-income people, to make workforces more diverse and provide specialized health care to underserved communities.And in its report, the Council of Economic Advisers acknowledged that Big Data “provides new tools for detecting problems, both before and perhaps after a discriminatory algorithm is used on real consumers.”Indeed, in the FTC’s action brought against the mortgage lending company Gateway Funding Diversified Mortgage Services, the agency said the company had failed to “review, monitor, examine or analyze the loan prices, including overages, charged to African-American and Hispanic applicants compared to non-Hispanic white applicants.” In other words, Big Data could have helped the company spot the problem.Policy Balancing ActThe policy challenge of Big Data, as many see it, is to root out discriminatory effects without discouraging companies from innovating and finding new and better ways to provide services and make smarter decisions about their business.Regulators will have to decide which Big Data practices they consider to be harmful. There will inevitably be some gray areas. In its report, the FTC suggested advertising by lenders could be one example. It noted that a credit offer targeted at a specific community that is open to all will not likely trigger violations of the law. But it also observed that advertising campaigns can affect lending patterns, and the Department of Justice in the past has cited a creditor’s advertising choices as evidence of discrimination. As a result, the FTC advised lenders to “proceed with caution.”As the era of Big Data gets under way, it’s not bad advice for all companies.*    *    *This post <a href="http://www.marketwatch.com/story/big-data-can-lead-to-big-legal-problems-for-companies-2016-06-01" target="_blank" rel="noopener">originally appeared</a> as an op-ed piece in <a href="http://www.marketwatch.com/" target="_blank" rel="noopener">MarketWatch</a>.For more on potential legal issues raised by Big Data usage, please see our <a href="http://www.sociallyawareblog.com/" target="_blank" rel="noopener">Socially Aware</a> post, <a href="http://www.sociallyawareblog.com/2016/01/13/big-data-big-challenges-ftc-report-warns-of-potential-discriminatory-effects-of-big-data/" target="_blank" rel="noopener">Big Data, Big Challenges: FTC Report Warns of Potential Discriminatory Effects of Big Data</a>.

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Mary Race assists clients with a wide range of challenging privacy compliance and data security matters. Her practice focuses on managing privacy risks and helping clients develop and implement comprehensive privacy programs across a variety of industries, including tech, retail, manufacturing, advertising, social media, and communications.

Mary Race

Big Data Can Lead to Big Legal Problems For Companies