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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Of Counsel

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

LinkedIN

In 2016, brands spent $570 million on social influencer endorsements on Instagram alone. This recode article takes a looks at how much influencers with certain followings can command, and whether they’re worth the investment.And don’t overlook the legal issues associated with the use of social media influencers; the FTC just settled its first complaint against social media influencers individually. The case involved two online gamers who posted videos of themselves promoting a gaming site that they failed to disclose they jointly owned.In a precedent setting opinion, the European Court of Human Rights held that the right to privacy of a Romanian man, Bogdan Bărbulescu, was violated when Bărbulescu’s employer, without explicitly notifying Bărbulescu, read personal messages that Bărbulescu sent from an online account that Bărbulescu had been asked to set up for work purposes.In other European news, the attorney general for England and Wales, Jeremy Wright, MP, has begun an inquiry into whether that jurisdiction needs to impose restrictions on social media in order to help ensure criminal defendants there get a fair trial.More than half of Americans 50 or older now get their news from social media sites, Pew Research Center’s 2017 social media survey shows.Celebrities who promote initial coin offerings (ICOs) on social media risk violating laws that apply to the public promotion of securities.Facebook developed an artificial intelligence robot that can express emotion by making realistic facial expressions at appropriate times.A college student has sued Snapchat and the Daily Mail for alleged defamation and invasion of privacy arising from the use of the student’s name and image on Discover, Snapchat’s social news feature, under the headline, “Sex, Drugs and Spring Break—College Students Descent on Miami to Party in Oceans of Booze and Haze of Pot Smoke.”Is the threat of artificial intelligence disrupting a slew of industries less imminent than we thought?Google created a website that uses fun illustrations to show which “how to” queries its users entered into the search engine most.The popularity of online videos that viewers can appreciate with the sound turned off has led to striking similarities between early silent film and modern social video.

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: Social media influencers earn big bucks for endorsements, while the FTC settles a suit against influencers; European court sides with employee axed over emails reviewed by employer

In 2016, brands spent $570 million on social influencer endorsements on Instagram alone. This recode article takes a looks at how much influencers with certain 

Social Links: Social media influencers earn big bucks for endorsements, while the FTC settles a suit against influencers; European court sides with employee axed over emails reviewed by employer

As Socially Aware readers know, privacy and data security issues are among the most critical legal issues confronting companies that do business online. With ransomware attacks and hacking incidents on the rise, and with privacy and data security laws becoming increasingly burdensome, companies are spending more time and resources than ever before addressing privacy and data security issues. Indeed, Morrison & Foerster recently collaborated with ALM Intelligence to take an in-depth look at the types of privacy and data security issues with which in-house legal departments are wrestling, and how such departments are dealing with these issues. The resulting report is interesting and informative, and can be found <a href="https://media2.mofo.com/documents/170722-gc-up-at-night-privacy-data-security-report.pdf?utm_source=mofo&utm_medium=web&utm_campaign=ALM%20GC%20Up-at-Night" target="_blank" rel="noopener noreferrer">here</a>.

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In-Depth Report: Privacy + Data Security

As Socially Aware readers know, privacy and data security issues are among the most critical legal issues confronting companies that do business online. With ra

In-Depth Report: Privacy + Data Security

More and more often, the organizers of conferences, trade shows and events are taking advantage of beacon technology to track attendees’ movement throughout their conventions’ sessions and event spaces. Although no U.S. law specifically prohibits such tracking, the FTC has made it clear that companies need prior consent to engage in such tracking.Find out how you may be able to monitor conference attendees’ movements throughout your event space without running afoul of the FTC Act. Read <a href="http://www.pcmaconvene.org/meeting-tech/beacons-rfid-privacy/">Convene </a><a href="http://www.pcmaconvene.org/meeting-tech/beacons-rfid-privacy/" target="_blank" rel="noopener noreferrer">magazine’s interview</a> with Socially Aware marketing desk editor Julie O’Neill.

Privacy Law Considerations in Tracking Event Attendees’ Whereabouts

More and more often, the organizers of conferences, trade shows and events are taking advantage of beacon technology to track attendees’ movement throughout the

Privacy Law Considerations in Tracking Event Attendees’ Whereabouts

On June 22, 2017, the German Parliament passed a <a href="http://dip21.bundestag.de/dip21/btd/18/127/1812785.pdf" target="_blank" rel="noopener noreferrer">bill</a> that, among other things, awards extensive surveillance powers to law enforcement authorities. The new law, once in force, will allow law enforcement to covertly install software on end user devices allowing the interception of ongoing communications via Internet services such as WhatsApp or Skype. These new measures may be used for investigating a wide array of crimes (the “Catalog Crimes”), which are classified as “severe” but range from murder to sports betting fraud to everything in between.Today, the German Federal Criminal Police Office (BKA) is only allowed to engage in similar activities to prevent international terrorism. All other law enforcement authorities are only allowed to intercept regular text messages and listen to phone conversations in cases of Catalog Crimes. However, these investigators are currently fighting a losing battle against end-to-end encrypted Internet services. With respect to such services, the current legal framework only allows for access via the respective telecom operators. These operators, however, can only provide law enforcement with the encrypted communications streams. By introducing the new law, the German government now aims to prevent “legal vacuums” allegedly resulting from this surveillance gap.Since the government’s respective plans became public, the new bill has drawn widespread criticism in Germany. First, the content of the new provisions is highly controversial:<ul><li>Compared to most other countries (including the U.S.), where such measures are not permitted, the measures to be introduced by the new law would significantly lower the German standard of protection of individuals’ privacy against governmental access.</li><li>In 2008, the German Federal Constitutional Court introduced a new fundamental right aimed at protecting end user devices against access and tampering by the authorities. In its decision, the court also set a high level of safeguards that were meant to prevent intrusion into an individual’s private life. Even though the new law also generally contains such safeguards, it is likely that it will be found to violate privacy rights and thus be declared void if brought before the Court.</li><li>Authorities have to rely on security loopholes or designated backdoors to hack into end user devices – which is diametrically opposed to tech companies’ aim of making their products as safe as possible.</li></ul>Second, the way the bill was rushed through Parliament was subject to heavy criticism. Ultimately, the governing parties managed to push wide-ranging surveillance powers through Parliament in just a few days by burying these new provisions under seemingly insignificant procedural amendments on short notice. Former Federal Data Protection Commissioner Peter Schaar issued a statement labeling this procedure “reckless” given the grave implications the new law would have for the individual freedoms of the people.The issue of governmental access to end user devices remains a very hot topic globally, creating complicated (legal) issues between technology companies and law enforcement.The new law will come into force immediately once it passes the Federal Council (Bundesrat) and after its publication in the Federal Gazette.

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Counsel

Christoph advises national and international clients on a broad range of regulatory questions and has particular industry-specific experience in the areas of technology, media, and telecommunication.


Christoph Nüßing

Christoph Nüßing is a senior associate at Morrison Foerster’s German office in Berlin. He advises German and international clients on a broad range of regulatory questions and has particular industry-specific experience in the areas of technology, media and telecommunication.

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German Parliament Enacts Wide-ranging Surveillance Powers Allowing End User Devices to Be Hacked by Authorities

German Parliament Enacts Wide-ranging Surveillance Powers Allowing End User Devices to Be Hacked by Authorities

On June 22, 2017, the German Parliament passed a bill that, among other things, awards extensive surveillance powers to law enforcement authorities. The new law

Facebook’s four-year battle on behalf of its users, seeking to quash 381 warrants obtained by the New York County District Attorney’s Office, has come to a close. The <a href="http://law.justia.com/cases/new-york/court-of-appeals/2017/16.html" target="_blank" rel="noopener">decision</a> of the New York Court of Appeals—which is New York’s highest court—leaves Facebook users exposed to wide-ranging and largely unchecked inquiries by New York criminal prosecutors into their Facebook accounts.The story begins in July 2013, when the New York Supreme Court—which is the trial court in New York—issued 381 warrants arising out of the district attorney’s (DA) application for warrants under the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-121" target="_blank" rel="noopener">Stored Communications Act</a> (SCA). The DA was investigating an alleged Social Security Disability fraud scheme.The DA’s request was extraordinarily broad. The warrants functionally amounted to a request for 381 users’ entire Facebook histories. The warrants compelled Facebook to produce not only any and all text, photos or videos a user had shared with his or her limited universe of friends, but also any private messages exchanged between the user and another individual (who could have been a spouse, doctor, religious figure or attorney) as well as information the user had chosen to no longer share with anyone, such as a previous email address, a deleted friend or a hidden post, and information the user had never intended to share with anyone, such as his or her searches and location.The warrants also compelled Facebook to produce content shared by users who were not named in the 381 warrants, and may not even have known anyone named in the 381 warrants, but who had the misfortune of posting on the timelines of those users uploading photos of those users, or simply belonging to any one of the groups with which a named user was affiliated. At least several of the affected users were high school students who were highly unlikely to have been involved in a Social Security Disability fraud scheme. The issuing court also expressly prohibited Facebook from disclosing the existence or execution of the warrants.While Facebook receives many such requests from law enforcement each year and often provides information in response, Facebook strongly objected to the wide-ranging requests in this case.Facebook moved to quash the warrants on the ground that they were overly broad, but the New York Supreme Court denied the motion, finding that Facebook did not have standing to assert any privacy or Fourth Amendment rights on behalf of its users. Facebook also challenged the nondisclosure provisions of the warrants, but again the court sided with the DA, reasoning that disclosure of the warrants could jeopardize the DA’s ongoing investigation.The intermediate appellate court dismissed Facebook’s appeal. The court explained that the orders from the lower court denying Facebook’s motion to quash were unappealable because, under New York law, there is no authority permitting review of interlocutory orders issued in criminal proceedings.Facebook took the fight all the way to the New York Court of Appeals. Facebook argued that an order denying a motion to quash an SCA warrant should be treated like an appealable order denying a motion to quash a subpoena, rather than like an unappealable order denying a motion to quash a traditional warrant. While a traditional search warrant authorizes law enforcement officials to enter, search and seize property, an SCA warrant, like a subpoena, requires the target of the warrant to compile and turn over its own digital data.On April 4, 2017, Facebook lost that fight when New York’s highest court ruled that it does not have authority to hear appeals from motions to quash search warrants issued under the SCA.In a 5-1 decision, the Court of Appeals concluded that, despite the similarities between the manner of responding to SCA warrants and the manner of responding to subpoenas, an SCA warrant is a warrant, not a subpoena. As with traditional warrants, SCA warrants are only issued in criminal proceedings to a government entity that has supported its request for a warrant with probable cause. The court explained that the difference between execution of traditional warrants and SCA warrants is due to “the nature of the material sought”—it “ensures efficiency and minimizes intrusion” for a service provider to search and compile its own digital information rather than for law enforcement to conduct the search. Accordingly, the Court of Appeals found that the order denying Facebook’s motion to quash was not appealable.Further, the Court of Appeals suggested that Facebook may not have had a right to bring a motion to quash in the first place. For purposes of this case, the Court of Appeals assumed, without deciding, that a motion to quash an SCA warrant was proper. However, the court noted that the SCA discusses warrants, subpoenas and court orders requiring disclosure of information separately, and only expressly provides for a motion to quash court orders.The Court of Appeals did express some sympathy for Facebook’s concerns regarding the privacy of its users. At the outset, the court stated that “[t]his case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizures,” and that it was “tempting for the court to address those issues.” The court also noted that “Facebook’s concerns, as a third party, about overbroad SCA warrants may not be baseless.”Notwithstanding its expressed concerns, and over a strenuous dissent from Judge Wilson, the New York Court of Appeals has provided criminal prosecutors wide-ranging investigative powers without providing Internet service providers an ability to obtain appellate review. With New York’s high court having spoken, the online industry’s focus is likely to shift toward a legislative fix that will promote users’ privacy interests and limit overreaching SCA warrants.*        *       *For other Socially Aware posts addressing user data and the Stored Communications Act, please see the following: <a title="Permalink to Google Ordered to Comply with Warrant for Foreign-Stored User Data" 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/2016/10/25/email-outside-us/" target="_blank" rel="noopener">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/" target="_blank" rel="noopener">We’ve Come for Your Tweets: Twitter to Appeal Denial of Its Motion To Quash District Attorney’s Subpoena</a>.

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.

J. Alexander Lawrence

New York’s Highest Court Rebuffs Facebook’s Efforts to Protect the Rights of Its Users in Search Warrant Fight