LexisNexis Blog: A view from the crossroads of law and technology

Facebook Confesses Failure to Comply with Privacy Laws

2011-12-01T15:10:00Z

After the US government filed charges that Facebook violated US privacy law, Facebook finally confessed that it failed to protect the privacy of its 800 million active users. The Federal Trade Commission (FTC) welcomes the public to submit comments on the settlement through December 30, 2011.

Under the proposed consent order, which does not include any fines, Facebook is:

barred from making misrepresentations about the privacy or security of consumers' personal information;

required to obtain consumers' affirmative express consent before enacting changes that override their privacy preferences;

required to prevent anyone from accessing a user's material more than 30 days after the user has deleted his or her account;

required to establish and maintain a comprehensive privacy program designed to address privacy risks associated with the development and management of new and existing products and services, and to protect the privacy and confidentiality of consumers' information; and

required, within 180 days, and every two years after that for the next 20 years, to obtain independent, third-party audits certifying that it has a privacy program in place that meets or exceeds the requirements of the FTC order, and to ensure that the privacy of consumers' information is protected.

The Facebook user community surely welcomes these commitments to comply with privacy laws, and it's good to see that FTC will monitor Facebook's privacy compliance for the next 20 years. The 20 year privacy monitoring is similar to the FTC's agreement for Google to protect privacy after Google's social media disaster with Buzz.

However, time will tell if the FTC can really police social media privacy, so it would be wise for social media users to protect their own privacy.

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Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.

Why Google Places is important for a Law Firm

2011-11-30T16:15:00Z

When you last performed a search on Google did you notice that several of the results were displayed on a corresponding map? If you simply attributed this to the genius of Google then you've ignored a powerful tool that can help gain your firm greater recognition.

Becoming registered in Google places can be a great proactive way of reaching millions of users quickly and for free. Searching for businesses online is now more common than any other method. This makes it ever more important for your firm to be found easily online. With Google places you can create a listing for your firm in just a few minutes with added extras such as photos, descriptions, videos, coupon offerings, and other details that will encourage potential clients to contact you. You can gain all of this exposure even if you don't have a website and best of all its free. If you do have a website, Google places can help promote better organic ranking by adding Search Engine Optimization value.

Your firms listing is easy to edit and manage so you can make sure its details are current and correct. Through a simple verification process your firm can have its Google places listing up and running in just minutes.

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Ryan Nelson is the Director of Operations for Legal Web Experts and maintains the Legal Web Experts blog as well as their affiliate blog Modern Legal Marketing, which offers internet marketing and technology tips for law firms and solo attorneys.

For more information about LexisNexis products and solutions connect with us through our corporate site.

How to Improve Search Results on Google

2011-11-28T14:10:00Z

Pew Research recently reported that 92% of adults use search engines daily and ComScore recently reported that 65.6% of all US searches are conducted on Google. So I thought I would pass along Hack College's recommendations about how to "Get More Out of Google." Here are some search pointers that may improve your use of Google:

WHAT YOU WANT: NY Times articles about Ponzi schemes and the Securities Investor Protection Corporation, but not Picard, written between 2000 and 2011.
GOOGLE SEARCH#1: site:nytimes.com ~ponzi "SIPC" -Picard 2000..2011
EXPLANATION OF SEARCH:
site: searches pages of that site only
~ will search related words such as 'fraud' and 'scheme'
" " search for the exact phrase not each of the words separately in this example the SIPC is the Securities Investor Protection Corporation
- excludes this term from search in this example Irving Picard (Bernie Madoff Bankruptcy Trustee)
.. date range shows all results with the designated time range

WHAT YOU WANT: A pdf report about discovery of documents with ESI (Electronically Stored Information) in the title.
GOOGLE SEARCH#2: filetype:pdf discovery intitle:ESI of *documents
EXPLANATION OF SEARCH:
filetype: searches only results of the file type you designate such as pdf, doc, jpg, etc
intitle: only shows results with that word in the title
* replaces itself with common terms in your search (in this case any kind of document whether paper or electronic)

Try these searches on Bing and Yahoo!, but you'll see that they don't work the same.

Please let me know if pointers help your use of Google.

Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.

Google Co-Founder Gives $500,000 to Wikimedia Foundation

2011-11-21T14:30:00Z

Since the Wikimedia Foundation (home of Wikipedia) is a not-for-profit, it survives by annual fundraisers. Google co-founder Sergey Brin and his wife Anne Wojcicki (23andMe co-founder) used their Brin Wojcicki Foundation to grant $500,000 to the Wikimedia Foundation. The Wikimedia Foundation kicked off its 8th annual fundraiser on November 16, 2011 and raised $1.2 million the first day.

Most people don't realize that unlike most other Social Media sites, the Wikimedia Foundation is not generating profits rather it relies on contributions. The Wikimedia Foundation is a 501(c)(3) for tax purposes. That means the Wikimedia Foundation does not operate to make a profit and does not pay taxes, and contributions to the Wikimedia Foundation are tax deductible.

According to a Wikimedia Foundation press release from Sue Gardner (the Executive Director) announcing the Brin Wojcicki Foundation grant:

The Wikimedia projects currently reach more than 477 million unique visitors around the world every month (comScore, October 2011), making Wikipedia the fifth most-popular web site in the world.

This is how Wikipedia works: people use it, they like it, and so they help pay for it, to keep it freely available for themselves and for everyone around the world. I am very grateful to Sergey Brin and Anne Wojcicki for supporting what we do.

Interesting blog on the New York Times included this comment:

Google and Wikipedia haven't always been friends. In 2007 Google introduced a service called Knol, which was seen by many as a Wikipedia competitor. There were concerns at the time that Google would highlight Knol rankings in its search results, pushing Wikipedia aside. But Knol didn't fare well online and has grown slowly.

The Wikimedia Foundation and Wikipedia expanded credibility by its alignment with the Smithsonian Institution, and other contributions from mainstream business.

Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.

TechLaw10: How Not To Become An Accidental Cyber Outlaw

2011-11-16T19:35:00Z

TechLaw10 hosts Jonathan Armstrong and Eric Sinrod discuss legal issues related to information technology.

In this episode, Jonathan and Eric discuss recent research from knowthenet which finds that on average only 44% of UK internet users were able to correctly identify illegal activity on the internet when presented with a range of possible scenarios including defamation, copyright infringement and hacking. They also talk about an online test which you can do to work out your vulnerability - check it out and share your results!

(Please visit the site to view this media)

Only 80% of US teens on Social Media

2011-11-15T14:30:00Z

Pew's recent report came as no surprise that 95% of teens (12-17) are on the Internet. But why are only 80% using Social Media? Amazingly 55% of online teens "have decided not to post something online because they were concerned that it might reflect badly on them in the future."

Hopefully the reason for teenagers' concern about their future is that parents are really taking the time to educate their children. Pew reported the following statistics:

94% of parents of online teens say they have talked with their teen about what kinds of things should and should not be shared online.
93% have talked with their child about ways to use the internet and cell phones safely.
87% have suggested ways to behave toward other people online.
87% of parents have talked with their child about what he or she does on the internet.

Since Pew recently reported that 65% of adults are using Social Media daily (up from 5% in 2005) the new Pew report that 80% of teens use Social Media certain means the age gap on Social Media is closing.

The 80% of teens using Social Media seems to reinforce the Consumer Reports article that 7.5 million children under 13 are on Facebook (in violation of the 1998 Children's Online Privacy Protection Act).

As Social Media evolves it will be interesting to watch these trends for teens and adults.

Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.

TechLaw10: Global HR Systems – Quick Compliance Tips

2011-11-11T18:44:00Z

TechLaw10 hosts Jonathan Armstrong and Eric Sinrod discuss legal issues related to information technology.

In this episode, Jonathan and Eric discuss quick compliance tips for global HR systems.

(Please visit the site to view this media)

Cloud - New Buzzword, Old Legal Issues

2011-11-11T14:51:00Z

Many readers agreed with my recent blog that the Cloud is a new label for old technology - "think connecting to a mainframe over telephone lines," and I encourage you to read my November eCommerce Times column about some important Cloud computing legal issues.

More Cloud History

Wikipedia's historical description of Cloud computing includes:

The term "cloud" is used as a metaphor for the Internet, based on the cloud drawing used in the past to represent the telephone network, and later to depict the Internet in computer network diagrams as an abstraction of the underlying infrastructure it represents.

The underlying concept of cloud computing dates back to the 1960s, when John McCarthy (computer scientist who coined the term artificial intelligence) opined that "computation may someday be organised as a public utility."

So it should come as no surprise that in 1972 before I studied law and was working as mainframe programmer that I took a graduate course - "The Computer as a Public Utility." The University of Texas at Austin course was cross listed between the Graduate School of Business, Computer Science Department, and School of Law.

For marketing purposes I'm sure at some point there will be a new buzz word to replace the Cloud, even if there's nothing new technically!

Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.

Is There A Social Media Privilege?

2011-11-09T19:32:00Z

Courts faced with ruling on discovery requests involving social media sites are forging new law. Courts can and do issue discovery orders compelling a party of a lawsuit to grant an opposing party access to his or her Facebook page or to permit in camera review of social media sites set to private settings.

Rules of Civil Procedure in most states provide for liberal discovery, e.g., "Generally, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried." Pa.R.C.P. 4003.1; FRCP 34 (The Advisory Committee Notes instruct that the rule be read broadly and was drafted with the intent to apply to an ever evolving technological field); NYCPLR 3101 construed liberally.

Several of the key decisions in this area include the following. In McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270, the plaintiff claimed substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life, after he was rear-ended during a cool down lap following a July 7, 2007, stock car race. The court granted defendants' Motion to Compel Discovery and ordered the plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants after defendants reviewed the public portion of plaintiff's Facebook account and discovered comments about his fishing trip and attendance at the Daytona 500 race in Florida, reasoning

Without more, the complete access afforded to the Facebook and MySpace operators defeats McMillen's proposition that his communications are confidential. The law does not even protect otherwise privileged communications made in the presence of third parties. See e.g. In re Condemnation by City of Philadelphia, 981 A.2d 391, 397 (Pa. Commw. Ct. 2009) ("Confidentiality is key to the [attorney-client] privilege, and the presence of a third-party during attorney-client communications will generally negate the privilege"). When a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate. That fact is wholly incommensurate with a claim of confidentiality. Accordingly, McMillen cannot successfully maintain that the element of confidentiality protects his Facebook and MySpace accounts from discovery. ... The Court reaches the same result upon considering Wigmore's test for privilege.

In Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Northumberland Co., May 19, 2011), the plaintiff had claimed serious physical injuries from an on-the-job accident. Photos that he posted to social media sites cast doubt on the severity of his claimed injuries and whether they predated his work-related accident. The publicly available photos induced the defendant to believe that further relevant evidence might exist on the password-protected parts of the site accessible only by the plaintiff's "friends." The plaintiff claimed that he had a privacy interest in the password-protected materials. In ruling against plaintiff on this issue, the court noted that "All the authorities recognize that Facebook and MySpace do not guarantee complete privacy. Facebook's privacy policy explains that users post any content at the site at their own risk and informs users that this information may become publicly available."

Piccolo v. Paterson, No. 2009-04979 (Bucks Co., May 5, 2011), was a personal injury case in which the plaintiff allegedly suffered significant facial injuries as a result of an airbag deployment. In her suit against the driver of the vehicle, defendants were permitted to take photographs of the plaintiff's face and were also provided with numerous photographs of the plaintiff before and after the accident. Plaintiff's counsel objected to the defendants' request for access to the plaintiff's Facebook page, which ostensibly was to determine whether the plaintiff's claims of injury were consistent with her postings on Facebook, on the basis that the defendants already had in their possession a multitude of photographs, that the defendants failed to make a showing of materiality, and that the request was an unreasonable annoyance, oppressive, and an unreasonable burden. In a brief opinion, the court denied the discovery request.

In Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650, 2010 N.Y. Misc. LEXIS 4538, 2010 NY Slip Op 20388 (2010), Defendant filed a CPLR 3101 motion for access to plaintiff's current and historical social networking pages and accounts, claiming that the plaintiff had placed certain information on the sites that it believed were relevant to the extent and nature of her injuries, especially her claims for loss of enjoyment of life. The court found, inter alia, that in light of the fact that the public portions of the plaintiff's social networking sites contained material that was contrary to her claims and deposition testimony, there was a reasonable likelihood that the private portions of her sites might contain further evidence such as information with regard to her activities and enjoyment of life, all of which were material and relevant to the defense of her personal injury action. The plaintiff's right to privacy was outweighed by the defendant's need for the information. As neither of the social networking sites guaranteed complete privacy, the plaintiff had no legitimate reasonable expectation of privacy. The defendant's attempts to obtain the information via other means were thwarted by the plaintiff's counsel. Consequently, pursuant to CPLR 3101, the defendant was entitled to the information.

Troubling privacy rights implications exist in criminal cases where the victim may be forced to have his or her privacy invaded. See, e.g., USA v. Lakha, N.D. Ga., 1:10cr451, in which a sexual assault victim was required to share Facebook materials with defense counsel and the judge for review.

The common factors in these opinions are as follows:

Where a litigant voluntarily posts pictures and information on social media sites to share with other users of the sites, he or she cannot claim to possess any reasonable expectation of privacy to prevent a defendant from access to such information.
Where a litigant puts physical condition at issue, he or she must anticipate reasonable discovery to rebut the claims.
Courts will not permit a fishing expedition: discovery in the social media context requires a threshold showing that publicly accessible portions of a social networking site contain information that would suggest that further relevant postings are likely to be found by access to the non-public portions. See generally McCann v. Harleysville Insurance Company, 78 A.D.3d 1524 (N.Y.S.2d 2010)
A court may decline to review materials in camera: 1) strain on court resources, 2) unfair to require court to guess at what may be germane to case. But see Barnes v. CUS Nashville, LLC, 3:09-cv-00764 (M.D. Tenn) (June 3, 2010) (court offers to friend witnesses)

Lisa C. McManus is Manager of the LexisNexis Communities and has presented frequently on the intersection of social media and the practice of law.

China and Russia Accused of Internet Spying on US Companies

2011-11-07T14:58:00Z

US intelligence agencies just reported to Congress that China and Russia have national policies to steal technology from US companies over the Internet. The Congressional report was compiled by the Office of the National Counterintelligence Executive which included this alarming information:

Many companies are unaware when their sensitive data is pilfered, and those that find out are often reluctant to report the loss, fearing potential damage to their reputation with investors, customers and employees.

Unfortunately pinpointing the culprits has been difficult as reported by the NY Times:

Both China and Russia hide behind the anonymity of proxy computers and dispersed routers in third countries to pilfer proprietary corporate information to accelerate their own economic development, according to the new intelligence assessment.

This report should be a wake-up call to US businesses!

Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.

Learn Attorney Website Design Versatility at ABA November Conference

2011-11-05T01:53:00Z

The upcoming ABA Law Firm Marketing Strategies Conference presents a great opportunity to learn about the applicability, versatility, and growing importance of your attorney website design in promoting your legal practice. The conference focuses on three important components of success in the legal field. These components, Reputation, Referral, and Ranking, give the conference name R³.

The conference will be held on November 8^th and 9^th, 2011 at the Four Seasons Hotel in Philadelphia, Pennsylvania and will be presented by the Law Practice Management Section of the American Bar Association (ABA). By holding their third event of this kind, ABA continues its tradition in providing law firms with the latest in marketing and industry news.

Two Keynote Speakers and several other speakers will present on how to best take advantage of your legal website design to grow and enhance your reputation, referrals, and rankings. The ABA faculty of attorneys and speakers will be available for discussion and questions and opportunities for networking are incorporated throughout the event. There are also social networking opportunities before and after the conference.

Reputation

Your reputation and having the world know about you is fundamental to your success. Keynote speaker Dan Hill, President of Sensory Logic, Inc. of Minneapolis, MN will commence the conference by explaining how law firm internet marketing can work towards or against your reputation in his speech "Lie to Mie! 'Emotion Management' of Your Marketing Will Invite Trust, Not Contempt". Dan Hill is a world known expert in facial coding, the method of reading facial expressions to know what someone is really thinking. Hill is an important figure in the national media on facial coding analysis and has contributed to explaining facial coding in national elections.

Referrals

Much of what it takes to maintain a business is generated through referrals. Peter Shankman, Founder of Help A Reporter Out and Founder of The Geek Factory, Inc. New York City, New York, as the second keynote speaker, will discuss how to make the most of referrals through the internet and your attorney website design. Shankman, known for "redefining the art of networking," will emphasize how the internet is changing everything and the importance of using social media.

Rankings

The conference luncheon "Effects of Rankings & Ratings on the Legal Profession" will examine and discuss the increasing complexity and weight of legal rankings and ratings. There are a number of companies dedicated to rankings and rates and they can be difficult to sort through to know which ones are of most importance. Over the luncheon, participants will have the opportunity to look at the pros and cons of participating in ranking, question surrounding ethics, and how to include and promote rankings in your legal website design. Participants in the roundtable discussion include law firm managements, in-house counsel, traditional print and online entities, and the media.

Registration is still open for this event. Visit www.lawpractice.org/marketingconference to register and to get conference updates.

TechLaw10: eDiscovery Limitations on the Horizon in U.S. Courts?

2011-11-02T15:50:00Z

TechLaw10 hosts Jonathan Armstrong and Eric Sinrod discuss legal issues related to information technology.

In this episode, Jonathan and Eric discuss recent developments with electronic discovery (eDiscovery) in the U.S. and Europe.

(Please visit the site to view this media)

Privacy at Risk? - Feds to Monitor Twitter & Facebook

2011-11-02T13:22:00Z

US citizens expect the Department of Homeland Security (DHS) to protect the country from potential threats, but the recent announcement that DHS will monitor Twitter & Facebook will surely cause privacy advocates great concern. Social Media has been used extensively in the government uprisings world-wide and DHS is now drawing up guidelines to monitor Social Media. Undersecretary of the DHS Caryn Wagner told an audience at the National Symposium on Homeland Security and Defense in Colorado Springs:

We're still trying to figure out how you use things like Twitter as a source...How do you establish trends and how do you then capture that in an intelligence product?

The DHS guidelines may cast a pall over Social Media and impact how Social Media is used and surely the Electronic Frontier Foundation (EFF) and Electronic Privacy Information Center (EPIC) will keep a close eye. As a matter of fact, EPIC posted a recent report from Carnegie Mellon University that found that "privacy tools designed to protect consumers from online behavioral advertising are ineffective because they are difficult for users to understand and to configure."

Everyone needs to stay tuned to see how this unfolds.

Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.

GUEST BLOG: New SEC disclosure guidance about cyber security risks

2011-10-29T16:38:00Z

GUEST BLOG FROM JIM BRASHEAR

I welcome Jim Brashear as a Guest Blogger with his blog concerning cyber security risks. Jim is Vice President, General Counsel and Corporate Secretary of Nasdaq-traded Zix Corporation, the market leader in email encryption services. He frequently appears as a public speaker on corporate governance, data security and information technology legal topics. You may want to follow him on Twitter. I'm sure we will see more Guest Blogs from him in the future.

New SEC disclosure guidance about cyber security risks

The SEC recently issued new disclosure guidance about cyber security risks. In summary, the SEC is directing public companies to review, on an ongoing basis, the adequacy of their disclosure relating to cyber security risks and cyber incidents. The disclosure guidance does not create new standards, but reminds public companies of existing disclosure requirements that may apply to cyber security risks and cyber incidents.

The bottom line is that this guidance should cause public companies, including their senior management and boards of directors, to give more attention to assessing cyber security as part of their enterprise risk assessments, because a discussion of cyber security risks and cyber incidents may become expected in public company financial disclosure. It should also prompt public companies to include these issues in their disclosure controls processes.

The SEC provides more specific guidance about disclosure in six areas of public company financial reports: Risk Factors, Management's Discussion and Analysis (MD&A), Business Description, Legal Proceedings, Financial Statement Disclosure, and Disclosure Controls and Procedures.

On the latter point, public companies will need to assess and disclose conclusions about the impact of cyber security risks and cyber security incidents on the effectiveness of the organization's controls over financial disclosure, including whether there are any deficiencies that would render those controls ineffective. Additionally, public companies should supplement their disclosure controls checklists, so that their disclosure controls processes will include consideration of possible disclosure about cyber risks and cyber incidents.

Companies are not required to disclose any or all of the issues that are identified for consideration and discussion by their disclosure controls committees. In fact, the SEC recognizes that detailed disclosures of these issues could increase the cyber risks. The organization may have concerns about what personnel can be involved in IT security discussions or receive any report about those issues, based on individual security clearances, etc. The process might, therefore, require that those discussions occur in a smaller group.

The list of questions below is intended to (a) prompt a discussion in the disclosure committee of any meaningful changes in the company's cyber risk profile and whether additional disclosure (or other action) is warranted, and (b) create a written record that management thoughtfully considered the principal data security and privacy risks facing the company in order to determine whether additional disclosure (or other action) is warranted.

1. Any significant change to the nature or level of cyber security risks facing the company or affecting the company's services to customers [such as any meaningful increase in actual or threatened penetration attempts, spear phishing or other advanced persistent threats (APT), or denial of service (DOS) attacks]

2. Any significant cyber incident [such as malware embedded in any company system which may have exposed or compromised any of the company's confidential or proprietary information, or the transmission or other exposure via the internet of unencrypted personal information of any customer, employee or other individual]

3. Any significant cyber security risk deficiency that was identified in any review or audit of the company's information security or data privacy practices

4. Any significant change to the company's expenses or capital costs of mitigating cyber security risks, such as an increase in cyber risk insurance premiums or services purchased to avoid system penetration

5. Any significant change in the company's ability to promptly respond to, and promptly resume operations after, a cyber incident or damage or loss of power to the company's principal data center or any other systems important to maintaining operations

Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.

GPS Data Will be Considered by the US Supreme Court

2011-10-26T17:00:00Z

Today everybody carries GPS devices in their phones (and tablets), but few people consider that our personal privacy may be compromised as a result. In November the US Supreme Court will hear argument (US v. Jones) as to whether the drug suspect's Constitutional right to privacy was violated since a GPS device was attached to his vehicle without a warrant. As a matter of fact, Roger L. Easton, the principle inventor of GPS technology, has joined the Electronic Frontier Foundation to urge the Supreme Court to require warrants before using GPS tracking systems.

GPS data is retained by phone service providers and may become a larger part of litigation (and eDiscovery) which will allow parties in litigation to track parties' location at specific times.

Our personal privacy may be a stake if the Supreme Court writes a broad opinion about how much personal privacy we can expect from GPS data since our phones (and tablets) contain GPS devices.

Visit Peter Vogel's Internet, Information Technology and e-Discovery Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.