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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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 

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

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

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.