Social Media Legality

#Famous on C-Block?… or a Jailhouse-Crock?

In 2008, Jodi Ann Arias put together an elaborate plan to corner her victim Travis Alexander and brutally stab him to death. After 29 consecutive stab wounds, a slit to his neck nearly decapitating him, and a gunshot wound to the head, she watched him suffer and take his last breath. She left him in the shower to rot, until he was ultimately found five days later in his Mesa, Arizona home. Due to the heinous nature of the crime, and the fact that she was an “attractive” female, the case garnered enormous media attention. After a lengthy trial, she was found guilty of first degree murder. Currently, Jodi awaits her fate in the penalty phase as the Prosecutor Juan Martinez seeks the death penalty.

As a convicted murderer, Jodi Arias has developed a large body of loyal followers via her Twitter page, which is run by a “friend”/previous fellow inmate. She currently sells artwork on her website by using Twitter to advertise. She also uses Twitter as a platform to: promote sales of her wristbands, taunt the victim’s family, solicit donations, poke fun at Prosecutor Juan Martinez, belittle her own attorney Kirk Nurmi, and flaunt her media coverage. Should any of this be allowed to happen?

The Son of Sam Law, applicable in Arizona, prevents criminals from profiting from their crimes. Although her artwork is not directly related to her crime, her Twitter account brings her enough fame to enable a healthy volume and a continuous flow of business. Should her horrendous murder be an outlet for her fame? Is fame a legitimate form of profit? Would any of us ever know Jodi Arias if not for the gruesome death of Travis Alexander? Should Jodi Arias have a voice to the outside world, after she extinguished Travis’ so horribly forever? Her latest tweet says she’s going “Radio Silent.” Considering that jury selection begins soon, her sudden choice to “sign off” seems obvious. Should such use of Social Media by a convicted murderer ever be allowed?

Social Media Privacy v. Regulation

How much access should employers and schools have over their employees and students? Bill L.D. 1194, currently pending in the Maine legislature, would restrict employers access to employees social media accounts, as well as the accounts of elementary, high school, and college students. The bill was originally introduced in March 2013 but was carried over into 2014.

One potential problem with this bill lies in the financial industry. The Financial Industry Regulation Authority (FINRA), an oversight group that licenses brokers and regulates the securities industry, requires securities firms to oversee their employees business communications, specifically including social media accounts. If, for instance, a securities broker messaged a client on Twitter or solicited clients via LinkedIN, the securities firm would be obligated under FINRA’s directives to record that communication. The goal of this is to maintain a regulated financial industry where no “secret” communications or deals are being commenced.

A securities industry trade group, the Securities Industry Financial Markets Association (SIFMA), has filed a letter with the Maine legislature asking them to write an exception into the law for securities companies to comply with FINRA and other regulatory directives. They believe that many employees use a personal social media account for both personal AND business related goals and that the employers must have access to those accounts. Illinois enacted a similar law this past summer, with exceptions for the broker-dealer employers

This shows FINRA and the securities brokers take social media accounts seriously and showcase how they play a role in the securities trade. It is a thin line between privacy and 1^st amendment rights on one side, and the need to regulate an important industry in American economics. It is also interesting to note that without the exception, the law in Maine may create an unbalanced securities industry and force brokers to choose between following FINRA directives and state law.

In this case, I believe the employee’s privacy is not something that should be expected. If using social media, it makes sense to create a personal account and a business account. The employer, however, must trust the employee is not using their personal account for business purposes.

Source: Bloomberg Law: Securities

Are Bloggers Really the Same as Traditional Journalists?

The Ninth Circuit extended to bloggers the First Amendment freedoms enjoyed by traditional journalists. In Obsidian Finance Group v. Cox, the Ninth Circuit ruled that New York Times v. Sullivan and Gertz v. Robert Welch, Inc, when read together hold that journalists are protected by the First Amendment and therefore plaintiff’s must be able to show that journalists acted with a minimum of negligent intent, if not higher, in order to sustain a libel claim. Although one of first impression for the Ninth Circuit, the issue of whether the negligent standard applies to bloggers has been percolating among the circuits for some time. Are bloggers journalists for purposes of the Sullivan/Gertz standard?

The 9^th circuit noted that the case which “involves the intersection between Sullivan and Gertz, [is] an area not yet fully explored by this circuit in the context of the Internet. Both parties argued that Gertz only applies to institutional press. But the court disagreed. Writing for the Court, Judge Hurwitz opined, “as the Supreme Court has accurately warned, a First Amendment distinction between institutional press and other speaker is unworkable.’

According to the circuit court, “the protections of the First Amendment do not turn on whether the defendant was a trained journalist …or went beyond just assembling others writings.” Therefore, bloggers for defamation purposes, should be subject to the same standards as traditional journalists in cases concerning defamatory statements.

Obsidian Finance Group is just another example of how 15 minutes of Internet fame can elevate an ordinary citizen to higher status for purposes of defamation law. Arguably, the “star” of a home video gone viral achieves public figure status for purposes of defamation law, so too, it seems, does the casual blogger.

Is Electronic Vicarious Copyright Infringement a Redundancy?

Vicarous copyright infringement, at least where the Internet is concerned, is nothing more than a redundant tort. A case filed in December 2013 in Maryland District Court illustrates the proposition nicely. National Photo Group, LLC v. Volunteerus, LLC, plaintiff, National Photo Group (NPG) a photojournalism service, brought a cause of action against Volunteerus for posting NPG pictures without authorization on Bubblws.com, a Volunteerus owned website.

According to the complaint, Volunteerus committed direct, contributory and copyright infringement when it “without permission or control, …improperly and illegally copied, reproduced, distributed, adopted and/or publicly displayed works copyrighted by [NPG].” According to the facts, NPG prints were made accessible to anyone on the Internet through its publication on the bubblews.com website.

The elements necessary to prove Internet copyright infringement are fairly well settled and a review of the Supreme Court case, MGM Studios v. Grockster, Ltd. provides a nice primer. The issue for me in National Photo Group is not so much one of whether there was infringement but rather why the tort of vicarious copyright infringement is relevant in the Internet age. In order to prevail under a theory of vicarious infringement, NPG must demonstrate that a third party appropriated the NPG photographs through the Bubblew.com website and that Bubblew.com was “in a position of control” to authorize the use of an infringing work. According to the Gockster Court, a defendant exercises control over a direct infringer when he has both a legal right to stop or limit the directly infringing conduct, as well as the practical ability to do so.

But given both the presumptive nature of and the ease with which anyone can download, print or even email pictures from the Internet it seems the only way to “control” vicarious copyrighters is by not providing these third parties access to the pictures in the first place. Stated more clearly, vicarious copyright infringement can only occur if the primary copyrighter illegally and impermissibly publishes the photographs on its own sites. And isn’t the original publication direct copyright infringement. If so, it seems that vicarious copyright infringement can only occur if defendants engage in direct copyright infringement. In an age of reposts, retweets, and regrams, it is pretty much a fortiori that directly copyright infringement will always lead to vicarious copyright infringement. Consequently, do we really need both torts?

Should we add Doxx to the Lexicon?

Emily Bazelon’s most recent NY Times Magazine article, The Online Avengers, details the activities of a group of individuals who “scour the internet for personal data” of bullies and then “publicly link that information to the perpetrator’s transgressions.” This practice of trolling the internet for transgressions is known as “doxxing.” The article focuses in particular attention to a man named Ash, who, together with a woman named Katherine, created an online group called OpAntiBullying. Although the group never met in person, and never met the victims for whom they championed, they worked together, for a while at least, to publicly shame adolescent bullies. One focus of the article is the infighting that eventually occurred among the small group of “do-gooders,” highlighting the fragile bond between zealots brought together by a common cause, and the way in which their united enthusiasm lead to an equally fevered undoing.

What struck me most about the article, was the use of the word doxx, which I hadn’t heard before. A cursory google search suggests the word has yet to gain much traction. Urbandictionary.com defines doxx as exposing someone’s true identity. A practice, the site suggests “is one of the scummiest things someone can do on the internet.” In contrast, Emily Bazelon profiles doxxing in a more positive manner. In her article Bazelon credits doxxing with bringing down the defendants in the Steubenville sexual assault case and with bringing awareness to a similar assault in Canada.

Doxxers are hackers. In most instances, a doxx can only occur if one breaks into someone’s twitter account, or instagram feed, finding incriminating comments or pictures. Consequently, most doxxers are anonymous, as was the case in the article.

But the practice and the goals of doxxers create a dichotomoy with which I am not sure I am comfortable. While a doxxers goal is more laudable, the conduct necessary to reach his or her goal is often illegal. Its a little like Robin Hood, committing a crime to achieve a better good. I am not sure how I come out on this, though I suspect I fall on the side of legality (would one expect otherwise from a lawyer?)

Regardless, I suspect doxx will become a word uttered with increasing frequency in the coming year. Thoughts, examples or opinions on doxx are greatly welcomed.

Do Tweets Now Require Disclaimers?

In yet another case that disfavors the freedom to post social media rants, The United States District Court for the District of Oregon found that a social services caseworker who posted Facebook comments questioning the ethics of families she supervised, was not entitled to relief for a First Amendment retaliation claim under 42 U.S.C. Sec. 1983. In Shepherd v. McGee (available here) the court found that the First Amendment did not provide protection to plaintiff, whose job it was to evaluate claims of child neglect among families, a majority of whom were on public assistance, for comments such as “So today I noticed a self-sufficiency client getting into a newer BMW. What am I doing wrong here? I think I need to quit my job and get on Temporary Assistance to Needy Families.” Plaintiff also posted a list of “rules for society” including “If you are on public assistance, you may not own a big flat screen television…”

The court balanced the interest of individual free speech against the government’s interest in assuring administrative efficiency and held for the defendant-government employee who terminated plaintiff. While the case serves as another example of an individual’s qualified right to post on Facebook, the more interesting query to me concerns a seemingly innocuous sentence in Judge Hernandez’ opinion concerning the intersection of personal and professional lives.

Judge Hernandez wrote that plaintiff identified herself on her Facebook pages as a “Child Protective Services Case Worker at Department of Human Services” yet did not provide a general disclaimer that “any content on the page was her opinion and not that of DHS.” Listing one’s job on one’s profile pages is almost as common a practice among Facebook subscribers as is sharing personal pontifications and ruminations. Judge Hernandez’ opinion plants the seed that, to avoid liability, individuals must keep their social media personal and professional lives separate.

This notion of separate lives is gaining significant traction. A recent NY Times article, “They Loved Your GPA Then Saw Your Tweets,” suggests college officials are scanning social media websites as part of their admissions decisions. To be sure, one’s personal social media statements can impact professional life. But is it of such concern that individuals should lose First Amendment protection short of posting a disclaimer to their tweets?