Social Media Legality

Social Rift

Another day, another questionable Facebook acquisition, and as engadget.com put it, another instance of the “Facebook” effect. This particular acquisition is the $2 billion purchase of virtual reality headset manufacturer “Oculus Rift.” Oculus Rift is a particularly unique purchase by Facebook because of its crowdfunding roots. Oculus Rift got its start through the crowdfunding website “Kickstarter.” Kickstarter allows individuals to contribute money to upstarts and projects often essentially pre-purchasing the product they are supporting. Oculus Rift was able to successfully get funded and shipped its VR headsets to qualifying supporters. Oculus was deemed to be a device that will change the gaming industry and supporters, many of them developers, wanted to get in on the ground floor. Since its funding the Oculus Rift has improved and has been used for numerous projects, demos, and games by developers, artists, and gamers alike.

The future of the Oculus Rift will now however will be determined by Facebook its new owner to the dismay of many of Oculus’ former supporters. Which poses an interesting legal question that Kickstarter and startups like Oculus have to consider. What happens when your hundreds of investors on a crowdfunding site like Kickstarter think they are funding something like a unique grassroots revolution in gaming and it turns out to be bought by a social media juggernaut who may have intentions to take the company in a completely different direction? Kickstarter has maintained that supporters on their website are not entitled to shares of the company they are supporting, viewing supporters as donators more than investors. Many of the 9,522 initial Kickstarter backers of Oculus are now demanding their money back and expressing their displeasure online through social media such as on twitter and on Oculus’ Facebook page (irony noted). Oculus’ Kickstarter page is riddled with comments condemning the acquisition and expressing their feelings of betrayal believing Oculus received a windfall on the shoulders of their supporters who made them who they are today.

Facebook may be able to now provide Oculus funding much greater than they have ever seen before, but their future in gaming is at risk by a number of factors. The “Facebook effect” for instance, caused by the feeling of distrust of the social media giant by many, is already having an adverse effect with not just their Kickstarter supporters, but also by huge players in the gaming industry the platform needs to rely on. The creator of “Minecraft,” an immensely popular game on a large number of platforms including game consoles, mobile phones, and PC’s tweeted, “We were in talks about maybe bringing a version of Minecraft to Oculus. I just cancelled that deal. Facebook creeps me out.” Oculus also will soon no longer be the only game in town as far as virtual reality is concerned, with Sony announcing recently their own headset, Project Morpheus, for their PlayStation 4 game console. Kotaku.com offered a quote by Sam Biddle from the blog Valleywag to offer a strong perspective to sum up the concerns of many in the crowdfunding community, “For me, it’s now simple: post-Oculus, if you back a large Kickstarter project, you’re a sucker.”

California Law Mandates Allowing Minors to Delete Social Media Posts

California has recently become the first state to enact a law requiring social media companies to give young users (under-18) the chance to delete regretful posts. Federal law lacks such a provision due mainly to the opposing argument that this would be too burdensome on social media companies. Many young social media users do not think before posting irresponsible, reputation-damaging words and pictures to the Internet. The “erase bill” was signed Monday by Governor Jerry Brown and comes into effect in January 2015.

The erase bill is lauded by many such as the founder and CEO of Common Sense Media, who stated, “[t]his puts privacy in the hands of kids, teenagers and the parents, not under the control of an anonymous tech company.” Senate leader Darrell Steinberg noted, “This is a groundbreaking protection for our kids who often act impetuously…before they think through the consequences. They deserve the right to remove this material that could haunt them for years to come.” The law also mandates that social media companies inform minors about their right to erase posts.

One blatant flaw in the legislation is that the law does not force the companies to remove the content completely from the servers. The posts thus survive in the vast cyber-sphere. However, allowing minors to retract ignorant statements and posts from the Internet seems to be a good start in the direction of future federal protection.

The article discussing this new legislation notes that pictures and posts discoverable online could ruin a young person’s ability to land a prestigious summer internship or even admittance into college. After all, employers and recruiters certainly Google young applicants, probably even before reading their applications.

The aim of this legislation is to get other states on board, and eventually to persuade Washington to construct binding law. As a graduate student without any social media, I never had to worry about the potential issues arising from regrettable social media posts. However, as we all make mistakes, especially in our teenage years, it seems appropriate to me that lawmakers would want to give minors the ability to right their wrongs in the days following such posts. I often regret words that come out of my mouth, let alone statements and/or photos that are memorialized on the Internet.

Do you think a young person’s future should be jeopardized for posting substance on the Internet that reflects a moment of their stupidity? We all undoubtedly must be held accountable for what we say, but shouldn’t minors get some leeway? Or, should schools and companies seeking to hire these minors be privy to the potential for such misconduct? I for one support this type of legislation. What do you think?

“Erase Law” News Article

Facebook After Death

Facebook has recently changed its privacy policy for deceased users’ accounts. Prior to this change, upon a friend or family member’s request, and upon confirmation that the user had actually passed away, Facebook would restrict the deceased user’s account so only “friends” could view the “memorial” page. In order to respect the choices a Facebook user makes while still alive, Facebook will now continue to apply, after the user’s death, the privacy settings the user chose while alive.

When I first read about this, I have to admit I thought it was a little creepy. I’m not sure that I would want my Facebook page to live on after I die, or if I would want random people to be able to look at a deceased family member or friend’s Facebook page. However, after surfing the Internet for more information about this, I came upon a Huffington Post blog that opened my eyes to the benefit of this new Facebook policy.

The author of the blog, Jordi Lippe, discussed how, after her father passed away tragically, she found herself visiting his Facebook page, posting on his wall, and tagging him in pictures more often than visiting his gravesite. Ms. Lippe didn’t find this to be creepy, as I had sensed it would be; rather, she looked at it as an opportunity to feel more connected to her father, to honor him, and to connect with all of the other people who missed and loved her father.

Various state legislatures are trying to figure out how to deal with digital assets. For example, Virginia enacted a law enabling parents of deceased minors to obtain control of their child’s various online accounts. After the parent assumes his or her child’s terms of service agreements, presumably, that parent can delete those accounts.

What are your thoughts? Is Facebook right in honoring a person’s privacy choices after he or she passes away? Should minors using Facebook receive the same treatment after death, or are parents justified in wanting to take control of their child’s digital assets, including deleting or deactivating those accounts? Would you want your Facebook page to be memorialized?

Facebook’s questionable expansion further into mobile.

How does a relatively unprofitable company of about 50 employees whose product is a blatant copy of another’s get acquired for 19 billion dollars in five years? The answer might not be entirely clear, but Facebook shareholders hope that CEO Mark Zuckerberg has a good idea after Facebook’s acquisition of mobile messaging app “WhatsApp” for $19 Billion. WhatsApp users also would like to know what this all means for the service they have deeply integrated into their lives.

WhatsApp had its start by offering a BlackBerry Messenger like experience for mobile devices other than BlackBerrys. What that means is that this kind of messaging service offers a much richer experience and allows for enhanced speed and security by utilizing internet data services as opposed to a traditional SMS text message. Today, WhatsApp has a user base of about 450 million monthly active users, with billions of messages being sent every day, and is growing at 1 million users a day. The company charges its users a dollar a year to use the service, making a profit nowhere near the $19 Billion purchase price by Facebook. Looking at Facebook’s current ad based revenue it enjoys through its other services it is not farfetched to suspect a change in the monetization strategy of WhatsApp. Despite these concerns WhatsApp CEO assures the Wall Street Journal that he believes WhatsApp “will stay completely independent and autonomous.”

These kinds of changes may concern the millions who use and trust WhatsApp especially with all of this happening on the heels of a report by Canadian and Dutch agencies having concerns over the privacy of users of WhatsApp due to violations of international privacy law. The report found that although WhatsApp had made some changes, the report still concluded that “The investigation revealed that WhatsApp was violating certain internationally accepted privacy principles, mainly in relation to the retention, safeguard, and disclosure of personal data.” Facebook has been no stranger to privacy concerns and controversy and users of WhatsApp will have to take all of this information into account when choosing what mobile messaging app they will like to use.

For now it is uncertain what changes, if any, will come to WhatsApp after this acquisition by Facebook. With more secure services like BlackBerry Messenger recently going cross-platform consumers will have to consider which companies they want to possibly have access to their conversations and personal information.

In the comments I would love to hear how you message friends (sms, imessage, bbm, whatsapp, kik, facebook messenger, etc) and why you use that service. Should we be concerned about the violation of privacy laws by some of these companies? What steps should be taken to protect consumers who utilize these services?

A Chilling Effect on Blogging?

In a recent New York Times article entitled Blogger’s Incarceration Raises First Amendment Questions, Campbell Robertson details the story of an activist who is the only journalist in the Western Hemisphere in a jail cell because of accusations he made on his blog. The blogger, Roger Shuler, is the author of the Legal Schnauzer. Schuler’s blog is known for its ongoing allegations of public corruption and conspiracy theories. Schuler’s arrest and subsequent detention on contempt charges stems from a defamation lawsuit filed by the son of the former governor of Alabama. Last July, the court issued a temporary restraining order which enjoined Schuler from making any further blog posts accusing the former governor’s son of impregnating a lobbyist and secretly paying for an abortion. The court also directed Schuler to remove older salacious blog posts about the married son of the former governor. At a subsequent hearing where Schuler appeared pro se, he unsuccessfully argued that the court lacked jurisdiction, calling the court a joke. The court subsequently ruled that the hearing “served as a trial on the merits” and ordered that Schuler be jailed until he removed the scandalous posts. Now Schuler, sits in a jail cell because he is unwilling to remove the posts or have an attorney contest his incarceration.

What I find most interesting about this case is whether First Amendment rights regarding blog posts may be impacted because of Schuler’s refusal to engage in the legal process? According to several civil rights attorneys, an amicus brief from the ACLU and even some of Schuler’s critics, the court’s ruling is alarming. One of Schuler’s critics, who in the past has threatened to sue Schuler for defamation, criticized the courts holding as having a potential chilling effect on blogging. In this case the court banned Schuler’s blog posts holding that they were libel. However, libel must be proved at trial, and here the hearing where Schuler opted out of the system is not enough according to Constitutional Law attorney Ken White. Now, bloggers First Amendment rights could be affected because of Schuler’s refusal to participate in the judicial system. In his article, Robertson details how Schuler’s past accusations have led to a flurry of previous litigation where Schuler mostly lost. Nevertheless, Schuler’s salacious allegations deserve the same protection under the First Amendment as those of any other person, blogger or journalist. However, any effects on bloggers First Amendment rights should not be determined in a case where a blogger refuses to take part in the judicial system but instead argues that the court is a “joke” and lacks jurisdiction. Instead bloggers First Amendment rights must be forged where the case is argued on its merits. In this case the effect on blogging may not be chilling but instead may only be room temperature, but we may not find out until Schuler opts back in to the judicial system and argues the case on its merits.

Social Media: Brand Builder or Mind Poison?

A recent interview on ESPN’s radio show Mike & Mike (you can find an article and podcast here) featured two prominent NCAA basketball coaches, John Calipari and Rick Pitino. On paper, these two coaches couldn’t be similar; age (only 6 years apart), coaches at powerhouse basketball schools (University of Kentucky and Louisville separated by only 75 miles), banners (three championships and 11 Final Four appearances between the two, although two of Calipari’s appearances have since been vacated) and the list could go on. While their knowledge and love for the game of basketball may be similar, their view on social media is vastly different.

Pitino referred to social media as a “poison” on his players and he bans them from using sites like Twitter while Calipari refers to social media as a brand builder and goes as far as to encourage his players to participate and use social media platforms. These opposite stances on social media couldn’t be a better illustration of why there is so much debate when it comes to the NCAA and its regulation of social media. You have some coaches prohibiting players from using social media and others promoting the use and regardless of the stance of its coaches, the schools continue to shell out the dough to monitor its players use of social media. If that isn’t a clear example of mixed signals then I don’t know what is.

Many schools, like UK and Louisville, spend tens of thousands of dollars to use monitoring software systems that flag certain keywords and content being used in a post or tweet. The athletes actually must agree to let the school monitor its social media use as a precondition to participate in their respective sports. Some legal scholars view this as a clear violation to the athletes’ First Amendment right to free speech and those views have gained traction as some states have prohibited schools from monitoring the social media accounts of its athletes. The NCAA has encouraged schools to monitor its student athletes on social media sites and in response we have state legislatures passing laws to ban the schools from doing so; another example of how far off we are from some type of amicable resolution.

People are entitled to their own opinions about social media, but we run into problems when those differing opinions lead to ambiguous regulations and policies. It’s hard to say which side has the better argument or if monitoring student-athlete social media accounts is warranted in the first place, but it’s clear that this issue is far from being resolved.

Facebook Cries For Help: What Are We Missing?

On Thursday, February 13, 2014, 15 year old Jayah Ram-Jackson jumped to her death from her grandmother’s Upper West Side high rise. Ram-Jackson had a history of depression and mental issues, but according to her family, no one anticipated the tragedy ahead.

When a loved one decides to take their own life everyone asks themselves, “Was there something I could have done?” or “Did I miss any signs or cries for help?” Most of the time the family dwells on minute phrases or actions from the days leading up to the death, but let’s face it, hindsight is always 20/20. Rarely do we have a clear documented threat days before a loved one takes their own life. On Tuesday, just two days before Ram-Jackson decided to plunge to her death, she posted on Facebook, “I’m actually just going to wait for someone to make a petition for me to kill myself because it’s inevitable…like, we all see it coming.” Unfortunately, no one did see it coming. Now, Ram-Jackson’s family should in no way, although they naturally may, blame themselves for not seeing this post. But, is someone else to blame? Should someone else be responsible for not catching this post earlier?

In such a social media controlled world, most teens in America have a Facebook account. If a teen contemplating suicide wanted to cry for help, I can think of no better place for that cry to be heard loud and clear than on their Facebook page. But are these cries being heard loud and clear? Facebook’s Statement of Rights and Responsibilities specifically states that, “we…are not responsible for the content or information users transmit or share on Facebook.” With this new age tool to detect suicide before it occurs, should Facebook have a duty to spot these cries for help and intervene? Should the government be placing some program into effect, or is it the guardians of the teens who should be responsible for monitoring their Facebook page? It seems to me that it is easier for a teen to post a half joking, half serious status about taking their own life on Facebook, then to physically go up to a parent or friend and talk to them about what they are feeling. Facebook has become an outlet, a friend, a therapist to these teens and we should not waste these opportunities to step in and get the teen help before doing something that they most definitely have not fully thought through.

Should someone be responsible for catching these cries for help posted by teenagers? If it is Facebook, will they willingly set up a filter to catch certain buzz words? If it is the government, are they allowed to fully monitor every word that Facebook users post in order to save lives? If it is the guardians, should they have a duty to continuously check their teens Facebook page?

Facebook has stated from the beginning that they are not responsible for what is posted on their site, so they are unlikely to create this type of program. Before Facebook was in existence, a guardian never had a duty to read a child’s diary searching for potential suicide threats, so it is also unlikely that a law would be created to force parent’s to consistently monitor their child’s social media pages. The government, on the other hand, may have the power to intervene. There is no privacy issue to these Facebook posts because there is no longer an expectation of privacy to the users, who have voluntarily chosen to relinquish this information to a 3rd party. The issue then becomes, is the government willing to set a program in motion which monitors these posts?

Trash and Cash! The Market Value of Financial Blogging.

On February 2, 2014, Bloomberg News reported, in an article entitled “Investors Bet Against Stock in Harvard Professor’s Blog,” by John Hechinger and Jesse Westbrook, that at least five investors successfully shorted the stock of a media advertising company, Blinkx, after the company received a scathing review (if not a flat out allegation of fraud) by a Harvard professor, Benjamin Edelman on his blog post: “The Darker Side of Blinkx.” Two US based investors who did not want to have their identity revealed commissioned Professor Edelman’s research into the company’s practices. The stock of the company fell by a third of its value in the days following publication of the blog on January 28, 2014. Five large investors took a short position on Blinkx stock just before the release of professor Edelman’s blog. The obvious implication is that anonymous investors commissioned a “hit piece” on a company that they were planning to short.

Is the Harvard professor’s blog a case of “trash and cash?” The answer to that would hinge on when the investors that commissioned this research took a short position on the stocks and whether they knew that the piece would be published. Professor Edelman claims in the amended disclosures on his blog that he was not hired to publish his results after giving them to the clients, but he did have a clause in the contract that conditioned the research on his ability to publish. Would investors not have a reason to know that the results would be published by a prolific blogger who, as a professor at Harvard Business School, has serious readership and credibility? Would the investors not know the piece would be published soon, so as to assure its relevance?

Another problem is with the possibility that the information on which the professor relied could be “insider” information or incorrect misleading information. The question is whether all the information that professor Edelman used was publically available or whether he may have used information and sources that a journalist would be allowed to use, but an investor would be prohibited. Bloggers and publishers are now considered journalists and can not only protect their sources but also can engage (and the assumption is that they would) in the type of investigative reporting that would uncover things not known to the public. Do regulatory agencies have a way of connecting these “hit pieces” with deliberate market manipulation? Do SEC and FINDRA need to read all influential business blogs that have impact on market prices and must the reporters disclose who received the information before it was published?

In his blog post, the professor actually goes so far as to recommend shorting the stock. This seems to take his analysis of “historic and current practices” one step further than reporting and into the territory of dolling out investment advice (or a self-fulfilling prophecy). Could the professor be found complicit in the market manipulation not as a blogger or a journalist, but as a financial advisor? The rise of social media has certainly created new challenges for securities regulators.