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.

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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.

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: 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

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

A recent decision out of the Northern District of California brings good news for developers of mobile apps that incorporate text messaging functions. Those functions may create the risk of claims under the Telephone Consumer Protection Act, which generally prohibits the delivery of a text message without the recipient’s express consent. But in <a href="https://docs.justia.com/cases/federal/district-courts/california/candce/3:2016cv00805/295817/65" target="_blank" rel="noopener">Cour v. Life360, Inc.</a>, U.S. District Judge Thelton E. Henderson granted defendant Life360’s motion to dismiss a putative TCPA class action after determining Life360 could not be held liable under the TCPA for a text initiated by a user of Life360’s messaging and geolocation application.BackgroundThe plaintiff alleged that he received a single, unsolicited text message from Life360, which operates a mobile application that allows users to text and see the location of fellow users on their contact lists. According to the plaintiff, after users download the application and set up an account, the application requests access to their contact lists so they can invite their friends and family to join. Users choose those in their contacts they wish to invite and then press an “Invite” button on the screen to send the invitations via text message. Users are not told how or when those invitations will be sent.Plaintiff filed claims under the TCPA and California’s Unfair Competition Law (UCL) on behalf of himself and a nationwide class of persons that received at least one text message from or on behalf of Life360. Life360 moved to dismiss both claims.One Text Sufficient to Confer Standing Under SpokeoLife360 first argued that the plaintiff lacked Article III standing because he failed to allege a concrete injury, as required under the U.S. Supreme Court’s decision in <a href="https://supreme.justia.com/cases/federal/us/578/13-1339/" target="_blank" rel="noopener">Spokeo, Inc. v. Robins</a>, 136 S. Ct. 1540 (2016). But the Court rejected that argument, holding that even though the plaintiff received only one text, the invasion of privacy it caused was sufficiently concrete to confer standing.Life360 Not Liable Under the TCPA or UCLThe key disagreement between the parties was whether Life360 or its user was responsible for “initiating” the invitational text message sent to the plaintiff. Relying on guidance from the <a href="https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-72A1.pdf" target="_blank" rel="noopener">Federal Communications Commission’s July 2015 declaratory ruling</a>, the Court ruled that the user—and not Life360—initiated the text to plaintiff, and thus Life360 could not be held liable.The Court reasoned that Life360’s users have to affirmatively choose which of their contacts will receive an invitation and then press the “Invite” button to actually send the invitations. Even though Life360 does not inform its users how or when those invitations will be transmitted, given the TCPA’s purpose of preventing invasions of privacy, “the person who chooses to send an unwanted invitation is responsible for invading the recipient’s privacy even if that person does not know how the invitation will be sent.” Consequently, Life360 could not be held liable for the text message under either the TCPA or the UCL.TakeawayAs this case demonstrates, to mitigate the risk of TCPA liability, developers of messaging software or applications should ensure that any text messages sent through their platforms are initiated by the users themselves through their affirmative conduct.*          *          *For more on the Telephone Consumer Protection Act’s application to text messages, see <a title="Permalink to FCC Rules That Opt-Out Confirmation Text Messages Do Not Violate the TCPA" href="https://www.sociallyawareblog.com/2012/12/10/fcc-rules-that-opt-out-confirmation-text-messages-do-not-violate-the-tcpa/" target="_blank" rel="noopener">FCC Rules That Opt-Out Confirmation Text Messages Do Not Violate the TCPA</a>; <a title="Permalink to G2G, Yo Quiero TB: Taco Bell Found Not Liable for Franchisee Text Message Campaign" href="https://www.sociallyawareblog.com/2012/09/06/g2g-yo-quiero-tb-taco-bell-found-not-liable-for-franchisee-text-message-campaign/" target="_blank" rel="noopener">G2G, Yo Quiero TB: Taco Bell Found Not Liable for Franchisee Text Message Campaign</a>; <a title="Permalink to Face Off: Consumer Sues Hockey Team Over Text Messages" href="https://www.sociallyawareblog.com/2012/07/19/face-off-consumer-sues-hockey-team-over-text-messages/" target="_blank" rel="noopener">Face Off: Consumer Sues Hockey Team Over Text Messages</a>. For more on the TCPA in general, see <a title="Permalink to FCC Clarifies Its Interpretations of the Telephone Consumer Protection Act, Provoking Strong Objections From the Business Community" href="https://www.sociallyawareblog.com/2015/07/27/fcc-clarification-of-the-telephone-consumer-protection-act-provokes-strong-objections/" target="_blank" rel="noopener">FCC Clarifies Its Interpretations of the Telephone Consumer Protection Act, Provoking Strong Objections From the Business Community</a>.

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App Developer Not Liable Under TCPA For User-Initiated Texts

App Developer Not Liable Under TCPA For User-Initiated Texts

A recent decision out of the Northern District of California brings good news for developers of mobile apps that incorporate text messaging functions. Those fun

Google is cracking down on mobile pop-up ads by knocking down the search-result position of websites that use them.The National Labor Relations Board decided <a href="http://www.bna.com/chipotle-worker-social-n73014446651/" target="_blank" rel="noopener">a social media policy that Chipotle had in place for its employees violates federal labor law</a>.A group of lawmakers plans to introduce <a href="http://www.theatlantic.com/politics/archive/2015/08/bill-to-criminalize-revenge-porn-coming-after-recess/458160/" target="_blank" rel="noopener">legislation that would criminalize revenge porn</a>—explicit images posted to the web without the consent of the subject—at the federal level.The Truth in Advertising organization <a href="http://abovethelaw.com/2016/08/kardashian-media-empire-under-legal-scrutiny/" target="_blank" rel="noopener">sent the Kardashians a letter </a>threatening to report them for violating the FTC’s endorsement guides. This <a href="http://www.wsj.com/articles/fda-sends-warning-letter-after-kim-kardashian-touts-morning-sickness-drug-1439401985" target="_blank" rel="noopener">isn’t the first time</a> the legality of the famous family’s social media posts has been called into question. If only Kim would read <a href="http://www.sociallyawareblog.com/2015/12/21/influencer-marketing-tips-for-a-successful-and-legal-advertising-campaign/" target="_blank" rel="noopener">our influencer marketing blog posts</a>.According to one study, <a href="https://contently.com/strategist/2016/08/16/study-68-of-publishers-use-editorial-staff-to-create-native-ads/" target="_blank" rel="noopener">68% percent of publishers</a> use editorial staff to create native ads.Twitter launched <a href="http://venturebeat.com/2016/08/24/twitter-launches-button-letting-you-send-direct-messages-from-any-website/?utm_content=buffer67be7&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer" target="_blank" rel="noopener">a button that a company can place on its website</a> to allow users to send a direct message to the company’s Twitter inbox.The Center for Democracy & Technology criticized the Department of Homeland Security’s proposal to ask visa-waiver-program applicants to disclose their social media account information.UK lawmakers issued a report calling on the big social media companies to do more to <a href="https://www.yahoo.com/tech/social-media-giants-must-more-police-sites-uk-134051320--finance.html" target="_blank" rel="noopener">purge their platforms of hate speech</a> and material that incites violence.<a href="http://www.nwaonline.com/news/2016/aug/20/social-media-playing-bigger-role-in-nor/?news" target="_blank" rel="noopener">Social media is playing bigger role in jury selection</a>, Arkansas prosecutors and criminal defense lawyers say.A day in the life of <a href="http://digiday.com/publishers/the-economist-denise-law/" target="_blank" rel="noopener">the Economist‘s head of social media</a>.Seven things smart <a href="http://www.inc.com/melanie-deziel/7-things-smart-entrepreneurs-do-on-instagram.html" target="_blank" rel="noopener">entrepreneurs do on Instagram</a>.Four ways to get busy people to <a href="http://time.com/money/4461991/get-people-to-read-emails/?xid=soc_socialflow_facebook_realsimple" target="_blank" rel="noopener">read the email</a> you send them.Want to know how Facebook views your political leanings? <a href="http://www.nytimes.com/2016/08/24/us/politics/facebook-ads-politics.html?_r=0" target="_blank" rel="noopener">Here’s the way</a> to find out.

Social Links: Google penalizes sites with pop-up ads; proposed Federal legislation to criminalize revenge porn; ad industry group questions Kardashians’ social media posts

Google is cracking down on mobile pop-up ads by knocking down the search-result position of websites that use them. The National Labor Relations Board decided a

Social Links: Google penalizes sites with pop-up ads; proposed Federal legislation to criminalize revenge porn; ad industry group questions Kardashians’ social media posts

<a href="http://www.theverge.com/2016/8/18/12539442/twitter-anti-harassment-tools-quality-filter-notification-settings" target="_blank" rel="noopener">Twitter took steps</a> to remedy its harassment problem.In addition, over the last six months, <a href="http://www.nytimes.com/2016/08/19/technology/twitter-suspends-accounts-extremism.html?_r=0" target="_blank" rel="noopener">Twitter suspended 235,000 accounts</a> that promoted terrorism.The Washington Post is using <a href="http://www.poynter.org/2016/the-washington-post-is-using-robots-to-cover-the-olympics-and-the-election/425192/" target="_blank" rel="noopener">language-generation technology</a> to automatically produce stories on the Olympics and the election.<a href="http://www.wsj.com/articles/pinterest-jumps-into-video-ads-fray-1471431601" target="_blank" rel="noopener">Video ads</a> are going to start popping up on Pinterest.Does it make sense for big brands to invest in expensive, <a href="http://adage.com/article/digital/p-g-decided-facebook-ad-targeting-worth-money/305390/" target="_blank" rel="noopener">highly-targeted social media advertising</a>? Procter & Gamble doesn’t think so.These brands are <a href="http://www.adweek.com/news/technology/3-brands-using-facebook-particularly-effective-ways-during-rio-games-172992" target="_blank" rel="noopener">using Facebook in particularly effective ways</a> during the Olympic games.Since we <a href="http://www.sociallyawareblog.com/2014/10/16/new-york-family-court-magistrate-allows-unprecedented-service-of-process-via-facebook-will-others-follow/" target="_blank" rel="noopener">first reported</a> on the phenomenon nearly two years ago, Facebook has become an increasingly common <a href="http://www.huffingtonpost.com/bari-zell-weinberger-esq/getting-served-on-social-media-how-some-spouses-are-using-facebook-to-divorce_b_11403928.html" target="_blank" rel="noopener">vehicle for serving divorce papers</a>.Across the country, states are grappling with the conflict between existing <a href="http://www.foxnews.com/politics/2016/08/15/states-courts-wrestle-with-allowing-ballot-selfies.html" target="_blank" rel="noopener">laws that prohibit disclosing ballot information or images and the growing phenomenon of “ballot selfies”</a>—photos posted to social media of people at the polls casting their ballots or of the ballots themselves.<a href="https://contently.com/strategist/2016/08/17/publishers-brands-creating-dozens-facebook-pages/" target="_blank" rel="noopener">Creating dozens of Facebook pages</a> for a single brand can help marketers to increase social-media-engagement and please the Facebook algorithm gods, according to Contenly.Here’s how Snapchat makes money from disappearing videos.A Harvard Business Review article <a href="https://hbr.org/2016/08/to-get-more-out-of-social-media-think-like-an-anthropologist" target="_blank" rel="noopener">advises marketers to start listening to</a> (as opposed to managing) conversations about their brands on social media.For intel on what it can do to keep teens’ attention, <a href="https://www.washingtonpost.com/news/the-intersect/wp/2016/08/18/instagram-has-a-secret-facebook-group-just-to-talk-to-teens/" target="_blank" rel="noopener">Instagram goes straight to the source</a>.

Social Links: Twitter offers anti-harassment tools; Pinterest takes on video ads; P&G changes its social strategy

Twitter took steps to remedy its harassment problem. In addition, over the last six months, Twitter suspended 235,000 accounts that promoted terrorism. The Wash

Social Links: Twitter offers anti-harassment tools; Pinterest takes on video ads; P&G changes its social strategy

Facebook introduced technology that disables ad blockers used by people who visit the platform via desktop computers, but <a href="http://www.vanityfair.com/news/2016/08/facebook-adblock-plus-work-around" target="_blank" rel="noopener">Adblock Plus has already foiled the platform’s efforts</a>, at least for now.A look at Twitter’s 10-year <a href="https://www.buzzfeed.com/charliewarzel/a-honeypot-for-assholes-inside-twitters-10-year-failure-to-s?utm_term=.fx6KOMDxrL#.ytjwx67GJ4" target="_blank" rel="noopener">failure to stop harassment</a>.Are mobile apps killing the web?<a href="http://www.mediapost.com/publications/article/282274/linkedin-sues-to-shut-down-scrapers.html" target="_blank" rel="noopener">LinkedIn sues</a> to shut down “scrapers.”The FTC is planning to <a href="http://adage.com/article/digital/ftc-cracking-social-influencers-labeling-promotions/305345/" target="_blank" rel="noopener">police social media influencers’ paid endorsements more strictly</a>; hashtags like #ad may not be sufficient to avoid FTC scrutiny. <a href="http://www.ft.com/cms/s/0/d200d8c2-5fef-11e6-b38c-7b39cbb1138a.html" target="_blank" rel="noopener">Officials in the UK</a> are cracking down on paid posts, too.Dan Rather, <a href="http://www.theatlantic.com/technology/archive/2016/08/dan-rather-reporting-for-facebook/495431/" target="_blank" rel="noopener">Facebook anchorman</a>.The U.S. Olympic Committee sent letters to non-sponsoring companies <a href="http://www.espn.com/olympics/story/_/id/17120510/united-states-olympic-committee-battle-athletes-companies-sponsor-not-olympics" target="_blank" rel="noopener">warning them against posting about the games</a> on their corporate social media accounts.How IHOP keeps winning the love & affection of its 3.5 million Facebook fans.A Canadian woman whose home was designated a Pokémon Go “stop” is <a href="http://www.cbsnews.com/news/pokemon-go-canada-class-action-lawsuit-gym-home-torrington-alberta/" target="_blank" rel="noopener">suing the app’s creators</a> for trespass and nuisance. We <a href="http://www.sociallyawareblog.com/2016/07/21/pokemon/" target="_blank" rel="noopener">saw that</a> coming.There’s a website dedicated to helping Snapchat users fool their followers into thinking they’re out on the town.Facebook has been wooing premium content owners, but <a href="http://www.wsj.com/articles/tv-companies-resist-facebook-video-deals-1470823203" target="_blank" rel="noopener">TV companies are reportedly resisting</a>.PETA got a <a href="https://www.techdirt.com/articles/20160805/16593335170/primatologist-tells-court-that-macaque-monkeys-are-like-super-smart-so-they-should-totally-get-copyrights.shtml" target="_blank" rel="noopener">primatologist to submit an amicus curiae brief</a> supporting its suit alleging a monkey who took a selfie is entitled to a copyright for the image.

Social Links: Facebook’s anti-ad-blocking software; LinkedIn’s “scraper” lawsuit; FTC’s upcoming crackdown on social influencers

Facebook introduced technology that disables ad blockers used by people who visit the platform via desktop computers, but Adblock Plus has already foiled the pl

Social Links: Facebook’s anti-ad-blocking software; LinkedIn’s “scraper” lawsuit; FTC’s upcoming crackdown on social influencers

We have <a href="http://www.sociallyawareblog.com/2014/07/21/data-for-the-taking-using-the-cfaa-to-combat-web-scraping/" target="_blank" rel="noopener">written before</a> about website operators’ use of the federal <a href="https://www.law.cornell.edu/uscode/text/18/1030" target="_blank" rel="noopener">Computer Fraud and Abuse Act</a> (CFAA) to combat data scraping. We have <a href="http://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">also noted</a> a number of recent cases in which courts held that social media platforms, rather than the users of those platforms, have the right to control content on and access to the relevant websites. A recent Ninth Circuit decision, <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/12/13-17102.pdf" target="_blank" rel="noopener">Facebook v. Power Ventures</a>, brings these two trends together.Power Ventures, the defendant, operated a website that aggregated users’ content, such as friends lists, from various social media platforms. In an attempt to increase its user base, Power Ventures initiated an advertising campaign that encouraged users to invite their Facebook friends to Power Ventures’ site.Specifically, an icon on the Power Ventures site gave users the option to “Share with friends through my photos,” “Share with friends through events,” or “Share with friends through status,” and displayed a “Yes I do” button that users could click. If the user clicked the “Yes I do” button, Power Ventures would create an event, photo, or status on the user’s Facebook profile. In some cases, clicking the button also caused an email to be sent to the user’s friends “from” Facebook stating that the user had invited them to a Facebook event.Upon becoming aware of this activity, Facebook sent Power Ventures a cease and desist letter informing Power Ventures that it had violated Facebook’s terms of use and demanding that Power Ventures stop soliciting Facebook users’ information. Facebook also blocked Power Ventures’ IP address from accessing Facebook. When Power Ventures changed its IP address and continued to access the site, Facebook sued, alleging among other things that Power Ventures had violated the CFAA. As we discussed at greater length in our <a href="http://www.sociallyawareblog.com/2014/07/21/data-for-the-taking-using-the-cfaa-to-combat-web-scraping/" target="_blank" rel="noopener">previous article</a>, the CFAA imposes liability on anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.”In analyzing Facebook’s CFAA claim, the court reasoned that Power Ventures did not access Facebook’s computers without authorization initially because “Power users arguably gave Power permission to use Facebook’s computers to disseminate messages” and, accordingly, “Power reasonably could have thought that consent from Facebook users to share the promotion was permission for Power to access Facebook’s computers.” That all changed, however, when Facebook sent Power Ventures the cease and desist letter expressly rescinding whatever authorization Power Ventures may have otherwise had. According to the court, “[t]he consent that Power had received from Facebook users was not sufficient to grant continuing authorization to access Facebook’s computers after Facebook’s express revocation of permission.”The court employed a colorful analogy to support its reasoning:Suppose that a person wants to borrow a friend’s jewelry that is held in a safe deposit box at a bank. The friend gives permission for the person to access the safe deposit box and lends him a key. Upon receiving the key, though, the person decides to visit the bank while carrying a shotgun. The bank ejects the person from its premises and bans his reentry. The gun-toting jewelry borrower could not then reenter the bank, claiming that access to the safe deposit box gave him authority to stride about the bank’s property while armed. In other words, to access the safe deposit box, the person needs permission both from his friend (who controls access to the safe) and from the bank (which controls access to its premises). Similarly, for Power to continue its campaign using Facebook’s computers, it needed authorization both from individual Facebook users (who controlled their data and personal pages) and from Facebook (which stored this data on its physical servers).Accordingly, the court held that, following receipt of Facebook’s cease and desist letter, Power Ventures intentionally accessed Facebook’s computers knowing that it was not authorized to do so, making Power Ventures liable under the CFAA.On one level, Facebook v. Power Ventures can be seen as a battle between two competing social media platforms over valuable user data. Certainly it is easy to understand why Facebook would object to Power Ventures poaching Facebook’s data. But the case can also be seen as an example of social media operators exerting the right to control their platforms, and the content and data that users post to those platforms, even against the users’ own wishes.In this sense, one can place Facebook v. Power Ventures in the <a href="http://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">line of recent cases</a> holding that, at the end of the day, it is the social media platform operator and not the user that controls the platform. And that is an important fact for individuals and companies to keep in mind when they are investing time and money to establish and maintain a social media presence on a platform controlled by someone else.*          *        *For more regarding online data scraping and the Computer Fraud and Abuse Act, see our earlier blog post <a href="http://www.sociallyawareblog.com/2014/07/21/data-for-the-taking-using-the-cfaa-to-combat-web-scraping/" target="_blank" rel="noopener">Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping</a>.

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Ninth Circuit Case Demonstrates That the Social Media Platform, Not the User, Is in Control

Ninth Circuit Case Demonstrates That the Social Media Platform, Not the User, Is in Control

We have written before about website operators’ use of the federal Computer Fraud and Abuse Act (CFAA) to combat data scraping. We have also noted a number of r

The First Circuit Court of Appeals’ recent decision in <a href="http://media.ca1.uscourts.gov/pdf.opinions/15-1719P-01A.pdf" target="_blank" rel="noopener">Yershov v. Gannett Satellite Information Network, Inc.</a> may carry important implications for mobile app providers seeking to navigate federal privacy laws—in particular, the <a href="https://www.law.cornell.edu/uscode/text/18/2710" target="_blank" rel="noopener">Video Privacy Protection Act of 1988</a> (“VPPA”). Although Yershov is not the first case to consider how the VPPA applies to mobile apps, the opinion contains two key holdings regarding (1) the scope of protectable personally identifiable information and (2) the treatment of free app downloaders under the statute.The VPPAThe VPPA was passed in 1988, after the video rental history of then-Supreme Court nominee Judge Robert Bork was disclosed in a newspaper article during debate over his nomination. Quoting the VPPA, the Yershov opinion explains that the statute is intended to preserve personal privacy in connection with the rental, purchase or delivery of video and audio materials and creates a “civil remedy against a ‘videotape service provider’ for ‘knowingly disclos[ing], to any person, [personally identifiable information] concerning any consumer of such provider.’” Of relevance in Yershov, the statute defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a videotape service provider.” The VPPA defines personally identifiable information to “include[] information which identifies a person as having requested or obtained specific video materials or services from a videotape service provider.”Case BackgroundAccording to the allegations in Yershov’s operative complaint, which were taken as true for purposes of the First Circuit’s opinion, Yershov downloaded the free USA Today mobile app (“the app”) on his Android mobile device in late 2013. The app is offered by Gannett via the Google Play Store and allows the user to access various USA Today media and content, including videos, on the user’s mobile device.Yershov claims that he watched numerous video clips on the app. Each time, Yershov’s operative complaint states, Gannett and its third-party marketing and analytics vendor collected three pieces of data: (1) the title of the video Yershov viewed; (2) the GPS coordinates of the device Yershov used; and (3) Yershov’s unique Android ID. According to Yershov, the vendor used this information to create “digital dossiers” for Yershov and similarly situated users, which Gannett in turn used to provide targeted advertising. Yershov says he never consented to the collection of this data. He filed a putative class action lawsuit as a result, claiming that Gannett’s actions violated the VPPA.Gannett successfully moved to dismiss Yershov’s VPPA claim. The district court held that the information Gannett collected and disclosed to its vendor constituted personally identifiable information, but nevertheless concluded that Yershov was not a “consumer” with a right of action under the VPPA because he failed to allege that he was a renter, purchaser or subscriber of Gannett’s video content. Yershov appealed.First Circuit Revives Yershov’s ClaimThe First Circuit reversed the district court’s dismissal order and remanded for further proceedings.First, the panel agreed with the district court that the information conveyed to the vendor by Gannett constituted personally identifiable information under the VPPA. According to the panel, the VPPA’s “abstract formulation” of personally identifiable information does not require the information at issue to “explicitly name[] a person” to come within the ambit of the statute. Rather, it is sufficient if the information “effectively reveal[s] the name,” or identity “of the video viewer” without too much uncertainty or “yet-to-be-done, or unforeseeable detective work.”Because Yershov alleged that Gannett’s vendor could connect the GPS coordinates and Android ID with a given person’s “name, address, phone number, and more,” the panel concluded that he sufficiently alleged a “firm and readily foreseeable” link between the data collected and the user’s identity.Second, the panel addressed the “closer question” of whether Yershov is a “subscriber” and, therefore, a consumer under the VPPA. Lacking a clear statutory definition, the panel evaluated various dictionary definitions of “subscribe,” which “include as an element a payment of some type and/or presume more than a one-shot transaction.”The panel expressly rejected the notion that the term “subscriber” incorporated a monetary payment requirement. Requiring monetary payment as an element, the panel reasoned, would render “subscriber” superfluous since the statute also lists “purchaser” and “renter” under its definition of “consumer” and those terms necessarily imply the payment of some monetary amount. According to the panel, “Congress would have had no need to include a third category of persons [i.e., subscribers] protected under the Act if it had intended that only persons who pay money for videos be protected.”The panel also found it significant that, in 2012, Congress considered the impact of the VPPA on video content in the age of the Internet and left the definition of “consumer” untouched—an indication, according to the panel, that “Congress understood its originally-provided definition to provide at least as much protection in the digital age as it provided in 1988.”In the end, the panel concluded that qualifying as a “subscriber” requires some kind of relationship between the individual and the video provider that gives the individual some form of special access to the video content. As the panel stated:[B]y installing the App on his phone, thereby establishing seamless access to an electronic version of USA Today, Yershov established a relationship with Gannett that is materially different from what would have been the case had USA Today simply remained one of millions of sites on the web that Yershov might have accessed through a web browser.Looking AheadThe Yershov decision is not without its critics. Its holdings conflict with the opinions of other courts that have considered similar issues.For example, federal district courts including the Northern District of California and the District of New Jersey have concluded that a unique, numerical device identifier is not personally identifiable information under the statute. Yershov does not address these contrary decisions.Further, in the 2015 case <a href="http://www.leagle.com/decision/In%20FCO%2020151009060/ELLIS%20v.%20CARTOON%20NETWORK,%20INC." target="_blank" rel="noopener">Ellis v. Cartoon Network, Inc.</a>, the Eleventh Circuit adopted a narrower reading of “subscriber,” requiring more of a “commitment” than that which arises from downloading a free app. Yershov distinguished the process associated with downloading and installing the apps in the Ellis case, but the Yershov and Ellis courts’ diverging conclusions could indicate a more fundamental disagreement aboutwhat it means to download and use free software.Yershov shows the continuing split among courts interpreting the scope of the VPPA. As a result, B2C website operators and mobile app developers that deal with video and audio materials will want to continue to monitor VPPA case law developments, and to seek to identify and address associated legal risks.*          *        *For other Socially Aware blog posts on the Video Privacy Protection Act, please see <a href="http://www.sociallyawareblog.com/2015/09/30/su/">Court Nixes VPPA Claim</a> and <a href="http://www.sociallyawareblog.com/2014/05/02/if-you-host-videos-on-your-website-read-this-blog-post-regarding-the-video-privacy-protection-act/">If You Host Videos on Your Website, Read This Blog Post Regarding the Video Privacy Protection Act</a>.

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First Circuit Issues Potentially Significant Ruling on Federal Video Privacy Statute’s Application to Mobile Apps

First Circuit Issues Potentially Significant Ruling on Federal Video Privacy Statute’s Application to Mobile Apps