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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Social Links: If the Suit Fits

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2012 was a momentous year for social media law. We’ve combed through the court decisions, the legislative initiatives, the regulatory actions and the corporate trends to identify what we believe to be the ten most significant social media law developments of the past year–here they are, in no particular order:<a href="https://law.justia.com/cases/federal/appellate-courts/ca4/12-1671/12-1671-2013-09-18.html">Bland v. Roberts</a> – A Facebook “like” is not constitutionally protected speechFormer employees of the Hampton Sheriff’s Office in Virginia who were fired by Sheriff B.J. Roberts, sued claiming they were fired for having supported an opposing candidate in a local election. Two of the plaintiffs had “liked” the opposing candidate’s Facebook page, which they claimed was an act of constitutionally protected speech. A federal district court in Virginia, however, ruled that a Facebook “like” “…is insufficient speech to merit constitutional protection”; according to the court, “liking” involves no actual statement, and constitutionally protected speech could not be inferred from “one click of a button.”This case explored the increasingly-important intersection of free speech and social media, with the court finding that a “like” was insufficient to warrant constitutional protection. The decision has provoked much criticism, and it will be interesting to see whether other courts will follow the Bland court’s lead or take a different approach.New York v. Harris – Twitter required to turn over user’s information and tweetsIn early 2012, the New York City District Attorney’s Office subpoenaed Twitter to produce information and tweets related to the account of Malcolm Harris, an Occupy Wall Street protester who was arrested while protesting on the Brooklyn Bridge. Harris first sought to quash the subpoena, but <a href="https://www.aclu.org/files/assets/owsharrismtqdecision.pdf">the court denied the motion</a>, finding that Harris had no proprietary interest in the tweets and therefore did not have standing to quash the subpoena. Twitter then filed a motion to quash, but the <a href="http://www.aclu.org/files/assets/owsharristwitterdec63012.pdf">court also denied its motion</a>, finding that Harris had no reasonable expectation of privacy in his tweets, and that, for the majority of the information sought, no search warrant was required.This case set an important precedent for production of information related to social media accounts in criminal suits. Under the Harris court’s ruling, in certain circumstances, a criminal defendant has no ability to challenge a subpoena that seeks certain social media account information and posts.The National Labor Relations Board (NLRB) issued its third guidance document on workplace social media policiesThe NLRB issued guidance regarding its interpretation of the National Labor Relations Act (NLRA) and its application to employer social media policies. In its guidance document, the NLRB stated that certain types of provisions should not be included in social media policies, including: prohibitions on disclosure of confidential information where there are no carve-outs for discussion of an employer’s labor policies and its treatment of employees; prohibitions on disclosures of an individual’s personal information via social media where such prohibitions could be construed as limiting an employee’s ability to discuss wages and working conditions; discouragements of “friending” and sending unsolicited messages to one’s co-workers; and prohibitions on comments regarding pending legal matters to the degree such prohibitions might restrict employees from discussing potential claims against their employer.The NLRB’s third guidance document illustrates the growing importance of social media policies in the workplace. With social media becoming an ever-increasing means of expression, employers must take care to craft social media policies that do not hinder their employees’ rights. If your company has not updated its social media policy in the past year, it is likely to be outdated.<a href="http://scholar.google.com/scholar_case?case=12279872483928107605&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Fteja v. Facebook, Inc.</a> and <a href="https://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv01721/253511/44/">Twitter, Inc. v. Skootle Corp.</a> – Courts ruled that the forum selection clauses in Facebook’s and Twitter’s terms of service are enforceableIn the Fteja case, a New York federal court held that a forum selection clause contained in Facebook’s Statement of Rights and Responsibilities (its “Terms”) was enforceable. Facebook sought to transfer a suit filed against it from a New York federal court to one in Northern California, citing the forum selection clause in the Terms. The court found that the plaintiff’s clicking of the “I accept” button when registering for Facebook constituted his assent to the Terms even though he may not have actually reviewed the Terms, which were made available via hyperlink during registration.In the Skootle case, Twitter brought suit in the Northern District of California against various defendants for their spamming activities on Twitter’s service. One defendant, Garland Harris, who was a resident of Florida, brought a motion to dismiss, claiming lack of personal jurisdiction and improper venue. The court denied Harris’s motion, finding that the forum selection clause in Twitter’s terms of service applied. The court, however, specifically noted that it was not finding that forum selection clauses in “clickwrap” agreements are generally enforceable, but rather “only that on the allegations in this case, it is not unreasonable to enforce the clause here.”Fteja and Skootle highlight that potentially burdensome provisions in online agreements may be enforceable even as to consumers; in both cases, a consumer seeking to pursue or defend a claim against a social media platform provider was required to do so in the provider’s forum. Both consumers and businesses need to be mindful of what they are agreeing to when signing up for online services.Six states passed legislation regarding employers’ access to employee/applicant social media accountsCalifornia, Delaware, Illinois, Maryland, Michigan and New Jersey enacted legislation that prohibits an employer from requesting or requiring an employee or applicant to disclose a user name or password for his or her personal social media account.Such legislation will likely become more prevalent in 2013; Texas has a similar proposed bill, and California has a proposed bill that would expand its current protections for private employees to also include public employees.Facebook goes publicFacebook raised over $16 billion in its initial public offering, which was one of the most highly anticipated IPOs in recent history and the largest tech IPO in U.S. history. Facebook’s peak share price during the first day of trading hit $45 per share, but with a rocky first few months fell to approximately $18—sparking shareholder lawsuits. By the end of 2012, however, Facebook had rebounded to over $26 per share.Facebook’s IPO was not only a big event for Facebook and its investors, but also for other social media services and technology startups generally. Many viewed, and continue to view, Facebook’s success or failure as a bellwether for the viability of social media and technology startup valuations.Employer-employee litigation over ownership of social media accounts2012 saw the settlement of one case, and continued litigation in two other cases, all involving the ownership of business-related social media accounts maintained by current or former employees.In the settled case of <a href="http://www.scribd.com/fullscreen/77786829?access_key=key-kfqdesukdoeh8asbkg4">PhoneDog LLC v. Noah Kravitz</a>, employer sued employee after the employee left the company but retained a Twitter account (and its 17,000 followers) that he had maintained while working for the employer. The terms of the settlement are confidential, but news reports indicated that the settlement allowed the employee to keep the account and its followers.In two other pending cases, <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1153&context=historical">Eagle v. Edcomm</a> and <a href="http://scholar.google.com/scholar_case?case=5901156139035785537&hl=en&as_sdt=2&as_vis=1&oi=scholar">Maremont v. Susan Fredman Design Group LTD</a>, social media accounts originally created by employees were later altered or used by the employer without the employees’ consent.These cases are reminders that, with the growing prevalence of business-related social media, employers need to create clear policies regarding the treatment of work-related social media accounts.California’s Attorney General went after companies whose mobile apps allegedly did not have adequate privacy policiesStarting in late October 2012, California’s Attorney General gave notice to developers of approximately 100 mobile apps that they were in violation of California’s Online Privacy Protection Act (OPPA), a law that, among other things, requires developers of mobile apps that collect personally identifiable information to “conspicuously post” a privacy policy. Then, in December 2012, California’s Attorney General filed its first suit under OPPA against Delta, for failing to have a privacy policy that specifically mentioned one of its mobile apps and for failing to have a privacy policy that was sufficiently accessible to consumers of that app.Privacy policies for mobile applications continue to become more important as the use of apps becomes more widespread. California’s OPPA has led the charge, but other states and the federal government may follow. In September, for instance, Representative Ed Markey of Massachusetts introduced <a href="http://www.govtrack.us/congress/bills/112/hr6377/text">The Mobile Device Privacy Act</a> in the U.S. House of Representatives, which in some ways would have similar notice requirements as California’s OPPA.Changes to Instagram’s online terms of service and privacy policy created user backlashIn mid-December 2012, Instagram released an updated version of its online terms of service and privacy policy (collectively, “Terms”). The updated Terms would have allowed Instagram to use a user’s likeness and photographs in advertisements without compensation. There was a strong backlash from users over the updated Terms, which ultimately led to Instagram apologizing to its users for the advertisement-related changes, and reverting to its previous language regarding advertisements.Instagram’s changes to its Terms, and subsequent reversal, are reminders of how monetizing social media services is often a difficult balancing act. Although social media services need to figure out how they can be profitable, they also need to pay attention to their users’ concerns.The defeat of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA)Two bills, SOPA and PIPA—which were introduced in the U.S. House of Representatives and U.S. Senate, respectively, in late 2011—would have given additional tools to the U.S. Attorney General and intellectual property rights holders to combat online intellectual property infringement. A strong outcry, however, arose against the bills from various Internet, technology and social media companies. The opponents of the bills, who claimed the proposed legislation threatened free speech and innovation, engaged in various protests that included “blacking out” websites for a day.  These protests ultimately resulted in the defeat of these bills in January 2012.The opposition to and subsequent defeat of SOPA and PIPA demonstrated the power of Internet and social media services to shape the national debate and sway lawmakers. With prominent social media services such as Facebook, YouTube, Twitter, LinkedIn and Tumblr opposed to the bills, significant public and, ultimately, congressional opposition followed.  Now that we’ve witnessed the power that these services wield when acting in unison, it will be interesting to see what issues unite them in the future.

Socially Aware Looks Back: The Social Media Law Year in Review

2012 was a momentous year for social media law. We’ve combed through the court decisions, the legislative initiatives, the regulatory actions and the corporate 

Socially Aware Looks Back: The Social Media Law Year in Review

BitTorrent, the peer-to-peer (P2P) file-sharing system that enables the quick downloading of large files, has sparked another novel controversy stemming from copyright-infringement claims brought against its users. Users take advantage of the BitTorrent sharing system to anonymously access popular media such as books and movies. That anonymity is unlikely to last long for users who are alleged to have downloaded copyrighted material. Last month, Judge Sweet, a federal judge in the Southern District of New York (SDNY), held that an anonymous P2P user has no First Amendment right to quash a subpoena seeking her identity where the plaintiff had no other means to effectively identify the defendant.In John Wiley & Sons Inc. v. Does Nos. 1-35, the plaintiff (Wiley), a publisher of books and journal articles, alleged that unidentified “John Does” used BitTorrent to illegally copy and distribute Wiley’s copyrighted works and infringe on Wiley’s trademarks. Wiley sued 35 defendants known only by their “John Doe Numbers” and Internet Protocol (IP) addresses. Seeking to identify the Does, Wiley moved for court-issued subpoenas to be served on various Internet service providers (ISPs), ordering them to supply identifying information corresponding to the Does’ IP addresses. In an attempt to maintain her anonymity and avoid liability, one of the 35 Does, then known only as John Doe No. 25 (“Doe 25”) or IP Address 74.68.143.193, moved to quash a subpoena served on her ISP, Time Warner Cable.Wiley reflects a new wave of litigation in which copyright holders have shifted from suing host sites to focusing on individual users of P2P networks. The mere fact that copyrighted material is downloaded from a particular IP address may be insufficient to prove that the P2P network user is the infringer. An IP address typically provides only the location at which one of any number of devices may be used by any number of individuals (in fact, Doe No. 25 contended that her ex-husband, not she, downloaded the infringing works). If a motion to quash is granted, the account holder’s identity is not revealed, and the claim is effectively dead.In considering whether to grant an anonymous account holder’s motion to quash a subpoena, courts balance the user’s First Amendment right to act anonymously with the plaintiff’s right to pursue its claims.Anonymous users can rely on a line of <a href="http://scholar.google.com/scholar_case?case=14955773971395308767&q=326+F.Supp.2d+556&hl=en&as_sdt=2002">precedent</a> that extends the First Amendment’s protections to online expression. And under <a href="http://www.law.cornell.edu/rules/frcp/rule_45">Rule 45</a> of the Federal Rules of Civil Procedure, a court must quash a subpoena if it requires disclosure of protected matter. Thus, to the extent that anonymity is protected by the First Amendment, courts will quash subpoenas designed to breach anonymity.On the other hand, plaintiffs pursuing their claims can point to precedent holding that the First Amendment may not be used to encroach upon the intellectual property rights of others.To balance these competing principles and determine whether certain actions trigger First Amendment protection, courts weigh the five factors set out in <a href="http://scholar.google.com/scholar_case?case=14955773971395308767&q=326+F.Supp.2d+556&hl=en&as_sdt=2002">Sony Music Entertainment Inc. v. Does 1-40</a>:<ul><li>whether the plaintiff has made a concrete showing of actionable harm;</li><li>the specificity of the discovery request;</li><li>the absence of alternative means by which to obtain the subpoenaed information;</li><li>a central need for the data; and</li><li>the party’s expectation of privacy.</li></ul>In Wiley, each of these five factors weighed in favor of disclosure of the defendant’s identity. Wiley pled a sufficiently specific claim of copyright infringement, and, without a subpoena, Wiley would have no other effective way to identify potential infringers of Wiley’s intellectual property rights.At least five other courts within the SDNY have denied motions to quash in similar litigations involving defendants accused of infringing Wiley’s copyrights via BitTorrent. Going forward, so long as copyright holders can satisfy the Sony five-factor test, they will be able to rely on cases like Wiley to ferret out copyright infringers.

L.W. v. Snap Inc.,  675 F. Supp. 3d 1087 

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

Change Healthcare Operations, LLC v WebMD Health Corp. 2017 WL 6610411  

Register.com, Inc. v. Verio, Inc.

Komag, Inc. v. Asahi Glass Co. Ltd.

Asante Techs. Inc. v. PMC–Sierra, Inc.

Biovail Corp. v. S.A.C. Capital Mgmt. 2009 WL 2844404 

Multi–Faceted Investigation of University Grants

Confidential International Arbitrations

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Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving 

J. Lawrence

J. Alexander Lawrence

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Be Wary of Sharing: Anonymous P2P User’s Motion to Quash Subpoena Denied

Be Wary of Sharing: Anonymous P2P User’s Motion to Quash Subpoena Denied

BitTorrent, the peer-to-peer (P2P) file-sharing system that enables the quick downloading of large files, has sparked another novel controversy stemming from co

On December 21, 2012, the third Milan appeals court acquitted three U.S.-based Google executives who had previously been convicted for breaches of Italian data protection law after Google failed to remove an abusive video from its Google Video site. The video, which showed schoolboys bullying a child with Down syndrome, remained on the Google Video site for almost two months in spite of complaints from users. Google only removed the video in response to a police investigation, after the organization Vivi Down, which advocates for people with Down syndrome, filed a report with the Italian police. Vivi Down subsequently took Google to court, which resulted in six-month suspended prison sentences for Google’s Chief Privacy Counsel Peter Fleischer, Chief Legal Officer David Drummond and Chief Financial Officer George Reyes (now retired).As reported in our earlier client alert on this subject, the convictions followed Milan Judge Oscar Magi’s February 2010 ruling that, although Google had no obligation to monitor user-generated content uploaded to its video site, Google controlled the data on the site and thus had obligations as a data controller under applicable data protection laws. In the first ruling in Europe to find a web operator liable for user-generated content, Judge Magi held that Google violated such laws when it failed to provide users with sufficient notice about how their personal data would be collected and processed or to obtain their consent (including for processing sensitive data revealing the child’s health condition). Further, the court determined that the Internet giant’s failure to remove the abusive video, even after receiving complaints from users, was motivated by profit because advertising revenues were generated each time the video was viewed.Prior to the appeals hearing, Milan public prosecutor Laura Bertole Viale <a href="http://www.reuters.com/article/2012/12/11/us-google-italy-idUSBRE8BA10R20121211">called</a> for the jail sentences to be upheld, observing that “not only has the privacy of minors been violated but lessons of cruelty have been given to 5,500 visitors.” The panel of judges at the appeals court, however, overturned the Magi ruling based on Google’s argument that it had not breached any privacy or other laws. Google said that it did not offer an editorial function, and that it could not be held responsible for the content as it was not possible for Google to continuously monitor the Google Video site. Google noted that it had swiftly removed the video in response to the police investigation, and had fully cooperated with the police investigation. Further, none of the targeted Google executives was directly involved in the posting of the video.  Indeed, <a href="http://www.nytimes.com/2012/12/22/business/global/italian-appeals-court-acquits-3-google-executives-in-privacy-case.html?_r=0">many </a>observers had expected that the Google executives’ appeal would be successful, given that the practices seemingly required by Judge Magi’s ruling are not followed by most web operators. None of the Google executives, all based outside Italy, has served any jail time because each sentence had been suspended pending appeal. The full court judgment will be published soon.

Jailbreak: U.S. Google Executives’ Italian Convictions Overturned

On December 21, 2012, the third Milan appeals court acquitted three U.S.-based Google executives who had previously been convicted for breaches of Italian data 

Jailbreak: U.S. Google Executives’ Italian Convictions Overturned

On top of a presidential election, <a href="http://abcnews.go.com/Technology/instagate-instagram-claims-display-users-photos-ads-users/story?id=18006012#.UOOqwbshQ3Q">protests</a> over Instagram’s terms of use, and the invention of gloves that can translate sign language, 2012 also brought to light interesting constitutional issues involving public entities’ use of social media when a citizens’ group <a href="http://www.legaltxts.com/wp-content/uploads/2012/08/HDf.pdf">filed suit</a> against the City and County of Honolulu for “violations of [the group’s] freedoms of speech” based on the Honolulu Police Department’s removal of several postings by the group from the Department’s official Facebook page.The background behind the lawsuit is seemingly innocuous. Like the <a href="http://www.facebook.com/WhiteHouse?fref=ts">White House</a>, the <a href="http://www.facebook.com/nycgov?fref=ts">City of New York</a>, and <a href="http://www.facebook.com/LARECYCLES?fref=ts">other governmental entities</a>, the Honolulu Police Department (“HPD”) has an <a href="http://www.facebook.com/honolulu.police?fref=ts">official Facebook page</a>. The HPD uses its Facebook page to provide the citizens of Honolulu with everything from crime reports to information on public parking, and Facebook users are able to comment on its various posts. For a period of time, HPD also allowed Facebook members to post on its “wall.” (HPD no longer allows wall posts, but retains a “recommendations box” on its page where users can make comments.) Starting in the beginning of 2012, several members of the <a href="http://www.hawaiidefensefoundation.org/">Hawaii Defense Foundation</a> (the “Foundation”), a non-profit organization dedicated to training citizens to use handguns and informing Hawaiians of their rights regarding firearms, began posting comments, articles, and photographs on the HPD Facebook page’s wall, criticizing the HPD on issues ranging from restrictions on issuing concealed weapons permits to alleged corruption. The administrators of the HPD Facebook page took the same actions that administrators of other Facebook pages commonly take, deleting the offensive posts and blocking the posters, both of which are easily done using Facebook’s interface.Although individuals and private companies take these actions every day on their Facebook pages, the Foundation pointed out that the HPD Facebook page was a self-proclaimed “forum open to the public” created and administered by a government entity. Facebook describes the HPD and other such bodies as “Government Organizations,” although this label is applied merely for categorization purposes and does not purport to carry any legal weight. Nonetheless, the Foundation labeled the administrators of the page as “agents” of the city of Honolulu, and argued that their actions were subject to scrutiny under the First and Fourteenth Amendments. In its complaint, the Foundation cited <a href="http://www.law.cornell.edu/supct/html/94-329.ZS.html">Rosenberger v. Rector and Visitors of the University of Virginia</a>, a case in which a university’s fund for student activities was considered a “limited public forum” for First Amendment purposes, to demonstrate that “a forum need not be a physical place.” The Foundation also claimed that the HPD violated its Fourteenth Amendment rights by removing the posts and banning the group’s members in violation of the Foundation members’ due process rights.Although the Foundation’s suit against the HPD is the first First Amendment suit of its kind, depending on its outcome, other private groups may soon file similar complaints against “Government Organizations” on Facebook that take a similarly aggressive approach to administering their Facebook pages. In fact, a former police officer in the small village of Island Lake, Illinois recently requested review from the Illinois Attorney General’s office when his comments on Island Lake’s Facebook page were deleted by the page’s administrators. The Illinois Attorney General issued an opinion in which it found that Island Lake’s actions did not violate the Illinois Open Meetings Act, but the opinion did not address the First Amendment issues.The Foundation’s suit against the HPD and other complaints against administrators of Facebook pages that act as “public forums” raise policy issues that did not exist in the pre-social media era. Unlike more conventional forms of criticizing the government, such as holding up physical signs in front of city, state or federal buildings, using Facebook as a vehicle for dissent can be done from the privacy of one’s own home and allows the complaining individual to make his or her opinions instantly known to the entire Internet-equipped world. Governmental entities are not required to have Facebook pages, but often establish such pages as a simple and efficient way of conveying information to citizens. If these entities are to face constant constitutional scrutiny based on their means of administering their Facebook pages, they may be reluctant to maintain a social media presence. The White House Facebook Page endures an endless onslaught of criticism in the form of comments on its posts (although it does not allow users to post on its wall), while, on the other hand, it appears that the <a href="http://www.facebook.com/pages/Island-Lake-Illinois/106087942754833?fref=ts">Island Lake Facebook page</a> has been shut down for the most part. In light of the HPD and Island Lake complaints, one <a href="http://www.jdsupra.com/legalnews/public-entity-deletes-comments-from-face-46395/">legal commentator advises public schools</a> whose Facebook pages may be visited by disgruntled students to “consult with legal counsel before deleting comments from social media webpages to address the constitutionality of that action.” Regardless of the outcome of the HPD suit, the fact that the complaint exists in the first place reinforces the notion that social media is the new battleground for all aspects of the law, from intellectual property to criminal law, and now to the frontier of constitutionality.

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Jessica Kaufman

Facebook ’em, Danno: Federal Court May Decide Whether Citizens Have First Amendment Right to Use Social Media to Publicly Criticize the Hawaii 5-0