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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On August 18, 2011, the Financial Industry Regulatory Authority, Inc. (“FINRA”) issued Regulatory Notice 11-39 providing guidance to broker-dealer members on so

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Updated FINRA Guidance on Social Media Websites and the Use of Personal Devices

Updated FINRA Guidance on Social Media Websites and the Use of Personal Devices | Socially Aware

On August 18, 2011, the Financial Industry Regulatory Authority, Inc. (“FINRA”) issued <a href="http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/notices/p124186.pdf">Regulatory Notice 11-39</a> providing guidance to broker-dealer members on social networking websites and business communications.  The notice represents FINRA’s first update to its guidance on social media since the release of <a href="http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/notices/p120779.pdf">Regulatory Notice 10-06</a> in January 2010. Regulatory Notice 11-39 merely clarifies existing guidance; accordingly, it is not likely to result in major changes to current social media policies of member firms.Background.  To understand the guidance, it is important first to understand the difference between static and interactive electronic communications.  In 2003, NASD Rule 2210 (on communications) was amended to include participation in an interactive electronic forum in the definition of “public appearance.”  Since then, FINRA rules do not require prior approval of postings by member firms or their associated persons on interactive electronic forums.  In contrast, static communications or postings are regulated as “advertisements” under FINRA rules and, accordingly, are required to be reviewed by a registered principal.  Member firms and their associated persons must distinguish between static and interactive electronic communications.Recordkeeping.  Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110 have long required that a broker-dealer retain electronic communications made by the firm and associated persons that relate to the firm’s business (i.e., business communications).  The posting of content on a website by a member firm or its associated persons is a communication under the FINRA rules and, accordingly, is subject to applicable FINRA recordkeeping rules.  According to FINRA, the determination of whether an electronic communication is related to a firm’s business and subject to recordkeeping, is a facts and circumstances assessment.  Neither the type of device or technology used to transmit the communication nor the ownership of the device is relevant. Finally, with respect to recordkeeping rules, the requirements are the same for both static and interactive electronic communications.Analyzing a communication is therefore inherently subjective.  FINRA notes that autobiographical information, such as location of employment and job responsibilities, might not be a business communication when included in a resume sent to a potential employer.  However, listing products and services provided by a firm would constitute a business communication.  Compliance departments must develop policies and procedures to help guide their personnel through the subjective nature of these determinations rather than leaving it to the discretion of individual associated persons or deciding on a case-by-case basis.FINRA cautions member firms that neither they nor their associated persons may sponsor media sites or use communication devices that automatically erase or delete content.  The automatic deletion of content precludes compliance with the recordkeeping requirements.  FINRA also cautions that, although third-party posts are generally not attributed to a firm or an associated person, the recordkeeping rules require retention of communications received by a firm or an associated person relating to its business and, thus, third-party posts may be subject to recordkeeping obligations.  Firms need to make sure that their associated persons that maintain social media sites do not use the sites for business purposes, and that such associated persons have adequate training and education regarding third-party posts, FINRA rules and firm policies. If the particular social media sites have the relevant compatibility, firms should consider requiring that associated persons include static legends on their media sites warning readers that neither the applicable member firm nor the associated person is responsible for third-party content.Supervision.  NASD Rule 3010 provides that member firms must establish and maintain a system to supervise the activities of each registered representative, registered principal and other associated person, and that the system must be reasonably designed to achieve compliance with applicable securities laws and regulations and with applicable FINRA rules.  If an associated person wants to use a social media site for business purposes, FINRA rules require that a registered principal should review the site prior to its use, to the extent that the content is static.  A site should only be approved for use for business purposes if the registered principal has determined that the associated person can and will comply with all applicable FINRA communication rules, federal securities laws and individual firm policies.FINRA notes that a registered principal must review an associated person’s proposed social media site in the form in which it will be launched and notes that some firms require review by a registered principal of the associated person’s initial posting on an interactive forum within the site.  Postings on an interactive forum generally do not require prior approval under FINRA rules but, according to FINRA, review of the initial post allows the registered principal to review the site in its final design.  Member firms should continue to supervise the site, from time to time, for compliance with applicable rules and federal securities laws after launch.FINRA explained that interactive content may become static through different acts and that such a change in format would change the treatment of such communications under the rules (for example by taking a “comment” on a Facebook post and copying it as a static Facebook “status update”).  FINRA also cautioned firms that, as with any other advertisement under FINRA rules, a registered principal must review material changes to previously approved static posts.  Associated persons will need to monitor their sites and registered principals must supervise appropriately to ensure continued compliance.FINRA also cautions that a firm must follow up on “red flags” that indicate noncompliance by its associated persons.  FINRA explained that some firms require that associated persons certify annually, or more frequently, that they are in compliance with supervision rules.  It also explained that some firms perform random spot checks of websites to monitor firm policy compliance.Third-Party Links, Third-Party Posts, and Websites.  FINRA explains that a firm may not establish links to third-party sites that the firm knows, or has reason to know, contain false or misleading content, and should not do so when there are red flags to that effect.  Further, FINRA advises that under applicable communication rules, a firm may become responsible for content on third-party sites if the firm has adopted or becomes entangled with the content on the third-party sites.  A firm may be deemed to be entangled with a third-party site if, for example, the firm participates in the development of content on the third-party site.  Also, a firm may be deemed to adopt third-party content if it indicates on its site that it endorses the content on the third-party site.  Many social media sites allow third parties to “recommend” a person and allow users to request recommendations.  Member firms should consider prohibiting associated persons from soliciting recommendations.  Otherwise, the firm may be deemed to have “adopted” the third-party recommendation.Firms should consider making sure that links to third-party sites are only accessible through a new window, and that a legend appears on the screen warning the reader that he or she is leaving the firm site and disclaiming any responsibility for third-party content.  It is unlikely that such legends will shield a member firm from sanction by FINRA, if applicable, but posting such legends may be effective for limiting liability relating to customer claims.  Firms should make sure that their policies relating to social media sites address links to third-party sites.In addition to adoption and entanglement, if a member firm cobrands a third-party site, it will effectively adopt the content of the entire site.  A member firm may co-brand a site by, among other things, placing the firm’s logo prominently on the site.FINRA explains that an associated person may respond to business-related posts by a third-party on the associated person’s personal social media site as long as the associated person’s firm does not have a policy prohibiting the use of personal social media sites for business purposes.  This principle applies to all business-related, but not personal, posts.  For example, the associated person may respond to questions regarding securities through his or her site unless prohibited by the applicable member firm.  FINRA notes that some firms allow their associated persons to post a non-substantive response to a third-party post and allow pre-approved statements that associated persons may use as a response that direct the third-party to a firm-approved communications medium, such as the firm’s e-mail system.FINRA also provides some comfort for firms that have a policy of deleting inappropriate third-party content.  A firm that has a policy of routinely blocking or deleting certain types of content will not be deemed to have adopted similar content that was neither blocked nor deleted.Data Feeds.  FINRA cautions that firms must manage data feeds inputted into their websites.  As data feeds may contain inaccurate data, firms must be familiar with the proficiency of the vendor providing the data and its ability to provide accurate data.  Managing data feeds involves understanding the criteria used by vendors in collecting or calculating the data, regularly reviewing the data for red flags and promptly taking necessary measures to correct any inaccurate data.Accessing through Personal Devices.  FINRA explains that firms may permit their associated persons to use personal devices to access firm business applications and to perform firm business activity.  However, FINRA cautions that a firm must be able to retain, retrieve and supervise business communications regardless of the ownership of the device.  According to FINRA, it is a good idea for a firm to require that, if possible, separate applications on a device be used for business communications to facilitate retrieval of the business communications without retrieving personal communications.  FINRA also notes that an application that provides a secure portal into a firm’s communications system is preferable, especially if confidential customer information is shared.  If a firm has the ability to separate business and personal communications on a device, and has adequate policies and procedures regarding usage, the firm will not be required to (but may voluntarily) supervise personal communications on the device.Conclusion.  Regulatory Notice 11-39 reaffirms FINRA’s general expectations of member firms with respect to business communications.  FINRA stressed repeatedly that member firms must have policies and procedures in place that cover the firms’ compliance efforts with the communication rules, and that the policies and procedures must include training and education.  Of course, the firms’ training and education must include training on the firms’ policies relating to social media and the need to continuously monitor such sites.  Firms should also consider continuous refresher courses for their associated persons to make sure they remain vigilant of the need to consider how continuously changing technologies may be treated under the rules.