SOCIAL MEDIA and the LAW September 13, 2019 10322 ICLE: State Bar Series

SOCIAL MEDIA AND THE LAW September 13, 2019 10322 ICLE: State Bar Series

Friday, September 13, 2019 SOCIAL MEDIA AND THE LAW Streaming, Beaming and Fakery

6 CLE Hours including | 1 Ethics Hour Copyright © 2019 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

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ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education, its offi cers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

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Printed By: HOW CAN WE HELP YOU?

Who are we? How does SOLACE work? What needs are addressed?

SOLACE is a program of the State If you or someone in the legal Needs addressed by the SOLACE Bar of Georgia designed to assist community is in need of help, simply program can range from unique medical those in the legal community who email [email protected]. Those emails conditions requiring specialized referrals have experienced some significant, are then reviewed by the SOLACE to a fire loss requiring help with clothing, potentially life-changing event in their Committee. If the need fits within the food or housing. Some other examples lives. SOLACE is voluntary, simple and parameters of the program, an email of assistance include gift cards, food, straightforward. SOLACE does not with the pertinent information is sent meals, a rare blood type donation, solicit monetary contributions but to members of the State Bar. assistance with transportation in a accepts assistance or donations in kind. medical crisis or building a wheelchair ramp at a residence.

Contact [email protected] for help. The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.

TESTIMONIALS

In each of the Georgia SOLACE requests made to date, Bar members have graciously stepped up and used their resources to help find solutions for those in need.

A solo practitioner’s A Louisiana lawyer was in need A Bar member was dealing Working with the South quadriplegic wife needed of a CPAP machine, but didn’t with a serious illness and in Carolina Bar, a former rehabilitation, and members have insurance or the means the midst of brain surgery, paralegal’s son was flown of the Bar helped navigate to purchase one. Multiple her mortgage company from Cyprus to Atlanta discussions with their members offered to help. scheduled a foreclosure on (and then to South Carolina) insurance company to obtain her home. Several members for cancer treatment. the rehabilitation she required. of the Bar were able to Members of the Georgia and negotiate with the mortgage South Carolina bars worked company and avoided the together to get Gabriel and pending foreclosure. his family home from their long-term mission work.

Contact [email protected] for help. iii FOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eﬀ orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be beneﬁ cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diﬀ erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staﬀ

Jeﬀrey R. Davis Executive Director, State Bar of Georgia

Michelle E. West Director, ICLE

Rebecca A. Hall Associate Director, ICLE AGENDA

PRESIDING: Deborah Gonzalez, Program Co-Chair, Law2sm, LLC, Atlanta-New York Paul E. Andrew, Program Co-Chair, Andrew Merritt Reilly & Smith LLP, Lawrenceville

7:45 REGISTRATION (All attendees must check in upon arrival. A removable jacket or sweater is recommended)

8:15 WELCOME AND PROGRAM OVERVIEW Deborah Gonzalez

8:30 SETTING THE SOCIAL MEDIA AND LAW CONTEXT: UPDATE 2019 Paul E. Andrew

9:25 PODCASTS ARE BACK Deborah Gonzalez

10:25 BREAK

10:35 PRIVACY UNDER ATTACK J. Scott Anderson, Culhane Meadows PLLC, Decatur

11:35 LUNCHEON (Included in registration fee.)

11:55 BLURRED BOUNDARIES – EMPLOYEE DISCIPLINE AND RIGHTS IN THE AGE OF SOCIAL MEDIA Gregory D. Jay, Chandler Britt & Jay, LLC, Buford

1:00 SOCIAL MEDIA SECURITY UPDATE Jodi Daniels, Red Clover Advisors, LLC, Atlanta

2:00 BREAK

2:10 REVIEWS AND ENDORSEMENTS Paula J. Frederick, State Bar of Georgia, Atlanta

3:10 ADJOURN TABLE OF CONTENTS

FOREWORD...... 6

AGENDA...... 7

SOCIAL MEDIA AND THE LAW:

SETTING THE SOCIAL MEDIA AND LAW CONTEXT: UPDATE 2019...... 9

PODCASTS ARE BACK...... 55

PRIVACY UNDER ATTACK...... 82

BLURRED BOUNDARIES – EMPLOYEE DISCIPLINE AND RIGHTS IN THE AGE OF SOCIAL MEDIA...... 96

SOCIAL MEDIA SECURITY UPDATE...... 105

REVIEWS AND ENDORSEMENTS...... 107

APPENDIX:

ICLE BOARD...... 156

GEORGIA MANDATORY CLE FACT SHEET...... 157 SETTING THE SOCIAL MEDIA AND LAW CONTEXT: UPDATE 2019

<< Back to Table of Contents “Setting the Social Media and Law Context: Update 2019”

Paul E. Andrew, Esq. September 13, 2019 DISCLAIMER

This presentation is for educational purposes only and does not constitute legal advice. It is recommended that you seek legal counsel for specific matters.

2 Social Media – A powerful tool https://www.youtube.com/watch?v=6k_G_h41ZaQ How widespread is social media use? Increase in Social Media Use Daily Use Also Increases Social Platform Rankings Trends in Adult Usage in U.S.

- 69% of adults use Facebook - 37% of adults used Instagram - 28% of adults used Pinterest - 27% of adults used LinkedIn - 24% of adults used Snapchat - 22% of adults used Twitter - 20% of adults use WhatsApp

Source: Pew Research January 2019 Snap “Snapping Out of It” WSJ July 24, 2019 – Record User growth New Platforms forming also

• Snapchat can become yesterday’s MySpace • 2019 – Amazon Spark left Amazon’s apps and internet • February 2019 - Pop is a new social media app targeting college students (UCLA & Oregon) • June 2019 – Jordan Peterson announces he is creating “Thinkspot” to allow users wider latitude in postings Trends in Business Usage

• Rise in private groups (e.g. FB Groups)

• Conversational commerce

• Transparency

• Stories (Stories access across 4 platforms approaching 1 billion uses per day)

• Commerce – Instagram’s shoppable posts, FB Marketplace, Pinterest (70% of China’s Gen Zers now buy direct from social)

Sources: Sproutsocial, Hootsuite Linked In Use Mobile Use Trending Up

• For the first time ever, US Consumers will spend more time using their mobile devices than watching TV • Average adult will spend 3:43 on mobile devices in 2019 • 81% of adults own smartphones (up from 35% in 2011)

Source: Emarketer, Pew Research January 2019 Mobile Use 15 Most Popular Sites

Source: eBizmba July 2019 Social Media Continues to Grow on the Internet

• Google is the most popular INTERNET site

• Facebook is 2nd most popular INTERNET site

• YouTube is 3rd most popular INTERNET site

• Yahoo

• Amazon

• Wikipedia

• Twitter

Source: eBizmba July 2019 Social Media & Advertising - follow the money trail • Social media advertising revenue is forecast at $51.3 billion for 2018. Revenue is set to grow 10.5% annually • SM advertising budgets are predicted to increase by 32% in 2018, and almost double by 2023 (Source: Hootsuite) Social Media Marketing & Lawyers • 2017 Attorney at Work survey found the following: • 96% of lawyers use social media (LinkedIn, Facebook, Twitter) • Platforms most successful for bringing in business: - Facebook (31%) - LinkedIn (27%) - Twitter (5%) - 40% use paid social advertising - 50% use Facebook ads ** (Small survey, only 302 participants) Social Media – Why You as a Lawyer Should Care? Competence is key

Your Clients are on Social Media - Many businesses have Social Media issues - Individuals have Social Media issues Competency - ABA Model Rule – requires lawyer to have basic knowledge of social media and advise clients about issue arising from use of site - GRPC – Rule 1.1 - Duty to Provide Competent Representation 20 Use SM – but use it properly

• Evolving Rules on Usage – April 29, 2019, NYSBA releases the 4th edition of its “Social Media Ethics Guidelines” • Feb. 27, 2019 – In Florida, an attorneys’ social media posts about 2 other lawyers – “old white males” and an accusation of bias - earned her an emergency suspension. • Twitter and Legal Advertising. SM may make lawyers more approachable/accessible but brevity constraints may lead to ethical questions about false or misleading information or solicitation issues. • Resource: “Legal Ethics & Social Media” ABA Publishing 2017 Judges too must be careful

• May 2019 – Judge Sara Doyles of the Georgia Court of Appeals posted on FB that she went to an event to “support Sherry Boston.” Ms. Boston is the DeKalb District Attorney. However, Georgia’s Canons of Judicial Conduct prohibit judges from endorsing a candidate running for public office. She later amended the post to remove the word “support” and substituted the word “see” for it. AJC, May 23, 2019 • Nov. 16, 2018 – Supreme Court of Florida rules that a FB friendship between judge and trial attorney is not sufficient grounds for judge to be disqualified (resolved a split). Law Offices Herssein v. USAA, No. SC17-1848 (11/15/2018) • Contrast In Re B.J.M. v. Carroll, Appeal No. 2017AP2132 (2/20/19) where court found that FB friendship between judge and litigant was improper Social Media Litigation Issues

• Jury selection issues – check your jurisdiction & judge • Some judges may have a standing order on the subject. - Discovery – Vasquez-Santos v. Mathew, 2019 NY Slip Op. 00541 (1/24/19) – Plaintiff allowed to discover “tagged photos” (references Forman v. Henkin, 30 NY3d 656 (2018) - Israeli v. Rappaport, 2019 N.Y. Misc. Lexis 94, 2019 NY Slip Op. 30070 (U)(1/8/19) Defendant is entitled to discover from plaintiff’s FB photos, videos which depict a) physical activities b) relationship with husband Social Media litigation Issues – cont.

• Your own Client’s Activities • No deletions – Allied Concrete v. Lester, 285 Va. 295 (2013) • $722,000 is a large number • FB - “Profile” & “Settings” has a “download file” feature • Twitter – “Settings” then “request your archive” • Videos/photos may not have “exif” data if uploaded

• Identify the social media platforms used by your opponent • Data Preservation letter How to Hunt on Social Media for the Smoking Gun – Formal discovery

• Formal discovery to third party providers (subpoenas) • Formal discovery to opposing party - Interrogatories - Identify all social networks even inactive - Identify screen names & email addresses - Identify all technology devices used - Identify all cloud storage providers - Document requests (Romano v. Steelcase, 907 NYS2d 650 (2010)) - Court ordered “consent” with follow up an option - Request for Admissions, depositions State Laws Continue to Evolve

• July 2019 – Virginia considering new law that would hold social media platforms liable if threats of violence to individuals within Virginia are not communicated to Virginia law enforcement (civil liability) • Mar 1, 2019 – NY passes bill making it illegal to disseminate or publish an intimate image of someone without consent • Feb. 2019 – WA bill (SB 5495) would make it a felony to extort using social media (new restaurant’s website and FB page bombarded with a series of negative reviews (offshore Romanian blackmail campaign requesting $900.00 in exchange for removal) • July 1, 2019 – In CA, social media bots with fake identities are illegal to use when trying to influence votes or commercial sales • January 1, 2020 – California’s Consumer Privacy Act (CCPA) will require all for profit businesses in the state to disclose to consumers upon request the information they collect and the sources of that information. Consumers can also request the information be deleted or not sold. First Amendment Issues

• First Amendment – can Pres. Trump block those he disagrees with from posting on his Twitter account? No!! 2nd Circuit upheld a lower court ruling .. “Once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.” Court said the ruling 1) does not consider private social media accounts that may be used by officials or 2) whether social media companies themselves are bound by the First Amendment when policing their platform. Knight First Amend. Inst. v. Trump (Case No. 18-1691, July 2, 2019, 2nd Cir.). • Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) holds government officials cannot chose whom to block on social media pages. • Turnabout is fair play - Saladino v. AOC (S.D.N.Y., July 12, 2019), Hikind v. AOC, (E.D.N.Y., July 12,2019) • Politicians fighting back – April 11, 2019 Peachtree City, GA considering passing a law allowing officials to sue citizens who defame them on social media, at taxpayer expense Privacy Issues

• District of Columbia v. Facebook, 2018 CA 008715B, District of Columbia (CA fallout - DC attorney general filed under DC law for damages, court refuses stay) • July 25, 2019 – FTC and Facebook agree to $5 billion dollar fine for allowing access to 50 million users • Constant tension – 26 states have enacted privacy laws in the employment context, 16 apply to educational institutions, 1 to landlords Estate Planning - Digital Assets

• Photographs, earned rewards, personal interactions, personal commerce accounts (i.e. any password protected account) • Average American has $55,000 worth of digital assets (McAfee) • 41 states have adopted the “Fiduciary Access to Digital Assets Act, Revised” (O.C.G.A. 53-13-1). • 2019 – heirs of the French Elvis use chart of Instagram posts to establish jurisdiction • Resource: Webcease – company searches the internet for all accounts linked to a specific email Business law

• “Business lawyers” are not immune from social media issues and challenges • Scherer Design Group, LLC v. Schwartz, 3rd Cir. (2/25/19) Employees left engineering firm. Firm lost key client and began searching employee’s browser history, accessed personal social media accounts via passwords saved on the computer prior to resignation. Firm’s monitoring activities did not constitute “inequitable conduct” under the “unclean hands doctrine.” (note – case did not deal with NJ social media access law) • Due diligence in business purchases -Who “owns” social media assets, both in purchase context and employment context • Employment Issues – have a social media policy. Society for Human Resource Management (SHRM) offers a sample supposedly approved by NLRB • Kamal v. Eden Creamery, LLC, No. 18-CV-01298 (S.D. Cal. June 26, 2019) – CEO controlling SM can keep them in lawsuits Employment - Hiring • Research has shown that what you say online correlates to who you are. • 2018 Survey by Careerbuilder said 70% of companies use social media to screen candidates before hiring, up from 60% in 2016. 43% use SM to check on current employees • Key reasons not to hire - Provocative photos (40%) - Drinking or drug use (36%) - Discriminatory comments (31%) - Bad-mouthed previous employer, co-employee (25%) - Lied about qualifications (27%) - Poor communication skills (27%) - Linked to criminal behavior (30%) - Candidate posted too frequently (12%)

• What is the employee “bringing” with them? Employment - Discipline, cont.

• Does your client have a social media policy? • Have you reviewed it? • Must ensure policies are not vague or too broad such that they violate the NLRA • NLRB – Advice Memoranda March 11, 2019 - an employee who posted on FB in a group discussion about unsafe work conditions and was fired was entitled to protection because his activity amounted to concerted activity Employment - Discipline, cont.

• Roy v. Correct Care Sols., LLC 914 F.3d 52, 63 (1st Cir. 2019) Plaintiff sues for hostile work environment, employer files for summary judgment. SJ denied and court notes that social media comments (FB) by co- workers may constitute actionable harassment, even if such comments are made wholly outside the workplace (supervisors were aware and did nothing). • July 2019 – City of Philadelphia fires 13 officers for offensive social media posts, will audit posts in future Criminal Law Developments

• July 17, 2019 – CA Supreme Court allows ruling of trial judge forcing Facebook, Instagram & Twitter to turn over private posts of victim to defense attorneys in a gang-related murder trial (prior to this, only law enforcement could force social media platforms to provide private postings)(last year CA Supreme Court ruled that defense lawyers could get public postings) Emoji Law

• “Emoji law” – Study by Santa Clara University indicated that 80 opinions in 2016 contained the term “emoji” or “emoticon”

• Historically  … but article in WSJ July 20, 2019 encourages use of emojis in workplace; in fact, some companies are requiring their use. • Slack noted 26 million custom emojis have been created since it introduced the feature Emoji Law – cont. Service, Jurisdiction, Tort Cases

• Defendant’s attorneys now routinely review social media posts to determine if a plaintiff’s injuries are “real” • Plaintiff’s attorneys are reviewing defendants’ social media posts to determine if they may have been impaired • Jurisdiction – long arm jurisdiction with “internet cases” generally analyzed under traditional tests Family Law

• People who use Facebook more than 1 time per hour are more likely to “experience Facebook-related conflict with their romantic partners.” Journal of Cyberpsychology.

• The American Academy of Matrimonial Lawyers says 80% of divorcing couples cite social media as a reason for their breakup • Social media posts are fertile ground for evidence of domestic violence, infidelity, custody and discovering hidden assets • Social Media “prenups” (unflattering photos, revenge porn) & Settlements should address “online activity” Social Media in Education

• Social Media activity can violate school policies • 2019 – 17-year old Colorado student threatened to kill a student at another high school, posting an image of a handgun, referencing a prior school shooting and saying “My 9 never on vacation.” Colorado Court of Appeals deemed those statements not threats and were protected free speech. Colorado Supreme Court set to decide the issue. • 2017 Harvard rescinded admissions offer to 10 students for offensive memes they posted in a private Facebook group (students had found and connected with each other on official Harvard Class of 2021 Facebook group). Miscellaneous Cases & Issues

• Online Reviews – May 2019 – FTC issues 3 proposed administrative complaints enforcing the Consumer Review Fairness Act. In response to consumers being charged for negative online reviews, FTC warns businesses that truthful review are protected under the Consumer Review Fairness Act (CRFA)(passed 2016, effective March 2017). Prohibits “gag” clauses in contracts

• Debt collection. Proposed law, released by Bureau of Consumer Financial Protection on May 6, 2019, may allow debt collectors to send privates messages on social media platforms.

A few older Georgia Cases of Interest

• Maynard v. Snapchat, 346 Ga. App. 131 (2018). Motor vehicle collision, car operated by young driver, plaintiffs sue Snapchat, Snapchat’s Motion to Dismiss granted. Appellate court rules provider was not a publisher or speaker of driver’s content, and thus was not immune from liability under the CDA.

• Lyle v. Tea Party Patriots, Inc. & Martin, CAFN: 11-CV-2549, Cherokee Superior Court, (June 26, 2017). Facebook posts lead to $833,000 verdict for defamation.

• Major v. State, 301 Ga. 147 (2017) – Student who posted threats on Facebook challenges statute and loses; can’t claim First Amendment protection.

• Gilreath v. Smith, 340 Ga. App. 265 (2017). The case of the “dangerous rooster.” Facebook Message was evidence. “Rooster will attack!” Miscellaneous Cases & Issues – cont.

• Smoot v. State 316 Ga. App. 102 (2012). Neighbors complain about house of prostitution. Officers conduct surveillance, question a man leaving premises and the conduct research on Craigslist and on the “ifshewontiwill website.” There the police find evidence including pictures of Smoot. At trial, the State offers printouts of web pages from “ifshewontiwill website.” Smoot objects, claiming lack of foundation and the printouts were hearsay. Trial court overrules those objections but the Court of Appeals partially overrules: - Documents from electronic sources subject to same rules of authentication as other documents (citing Hammontree v. State, 283 Ga. App. 736, 739 (2007)). - May use circumstantial evidence for authentication - Detective who had investigated testified 1) he made the printouts of the website, 2) the printouts were a fair and accurate representation of that actual things that he personally viewed on the website, 3) State also introduced business cards from residence which had the website URL printed on them, and 4) Smoot admitted that she was “familiar” with the website. - Printouts were sufficiently authenticated - As to hearsay, Court agreed ad content was not hearsay but admissible as “verbal acts” - Craigslist printouts NOT admitted because detective did not testify that the printouts “fairly and accurately represented the contents of the website she personally viewed as part of her investigation.” Some things have not changed…

Social Media is… • Public • Permanent • Powerful • Affects you and your clients Q&A or Shared Experiences Thank you!

Paul Andrew, Esq. Andrew, Merritt, Reilly & Smith, LLP 770-513-1200 [email protected] Paul E. Andrew - Partner

[email protected]

Mr. Andrew practices in contracts, corporate law, business litigation, employment litigation and business organization. A 1987 graduate of the University of Georgia, Paul earned his law degree with honors from Georgia State University in 1990. He is a member of the State Bar of Georgia (Member, Sections on: Labor; International Law) and the American Bar Association (Member, Section on Labor and Employment Law). Paul was born in Decatur, Georgia, and has previously practiced law as an Associate with Fisher & Phillips (Atlanta, Georgia), as well as with Thompson & Sweeney, P.C. (Lawrenceville, Georgia).

PODCASTS ARE BACK

<< Back to Table of Contents “Podcasts Are Back”

Deborah Gonzalez, Esq. [email protected] September 13, 2019 DISCLAIMER

This presentation is for educational purposes only and does not constitute legal advice. It is recommended that you seek legal counsel for specific matters.

2 What is a Podcast?

Ron Burgandy Has a Podcast What is a Podcast?

• Verb: podcasting is the technology that allows for distributing audio or audio/video programs automatically over the Internet through a “publish and subscribe” model.

• Noun: A podcast is the program that is distributed using the podcasting publish and subscribe model.

• The key common ingredients of a podcast are: (1) an audio and/or audiovisual file that is (2) archived and available on the Internet, (3) such that it is accessible by a computer automatically (via RSS or other feeds with enclosures), and (4) is downloaded and (5) transferable to a portable media player. Podcasts – The Market

• over 750,000 total shows as of June 2019 • over 30 million episodes as of June 2019 • in more than 100 languages • 51% of US population has listened to a podcast (over 60 million homes) • 49% listen at home (US) • 22% listen in the car (US) • 80% listen to all or almost all of each podcast episode (US) • Of the monthly listeners 44% are women and 56% are men (US)

Source: https://www.podcastinsights.com/podcast-statistics/ Podcast Legal Issues

Podcast Law by David Lizerbram

• Patent? • Copyrights • Trademarks • Monetizing Your Podcast: Rules for Advertisements and Endorsements • Legal Tips for Interviewers

https://lizerbramlaw.com/wp- content/uploads/2015/08/Podcast-Law.pdf Patent?

• In 2015, the Electronic Frontier Foundation successfully petitioned the US Patent and Trademark Office to invalidate parts of Personal Audio, LLC’s patent, arguing that they were not the first to invent a “system for disseminating media content representing episodes in a serialized sequence.” • Personal Audio is considered a Patent Troll and used this “podcasting patent” to go after podcasters from 2011-2013. • Personal Audio appealed and a Federal Court upheld the lower courts decision in 2017.

• https://www.theverge.com/2017/8/8/16110766/podcast-patent-troll- appeal-federal-circuit-personal-audio-llc-eff-radio

• https://www.eff.org/deeplinks/2018/05/eff-wins-final-victory-over- podcasting-patent Copyrights

• Copying the work to include it into a podcast; • Adapting or changing the work to include it into the podcast; • Making a work available as part of a podcast for transmission to members of the public; • Authorizing members of the public to make a copy of the podcast and use it according to the terms you apply to the podcast. • Copyrighting the podcast (Seasons as collections). Copyrights

• Fair Use • The four factors judges consider are: • the purpose and character of your use • the nature of the copyrighted work • the amount and substantiality of the portion taken, and • the effect of the use upon the potential market. • De Minimis • Parody • Criticism, comment, news reporting, teaching, scholarship, or research

• Public Domain – published before 1923 (in US only) • Free Speech – First Amendment Arguments • Newsworthy; Podcasters are not Media/Journalists?? Copyrights

• Digital Millennium Copyright Act (DMCA), the Communications Decency Act (aka “Section 230”), on-line defamation, privacy, reporter's privilege, media access, election law, and labor law.

• DMCA Take Down Notice Applies Copyrights

• Works that are created by a US government employee or officer, as part of their official duties, are not protected by copyright. Similarly, federal and state statutes and judicial opinions are not protected by copyright. • However, this extends only to federal officials and also, only to employees. This means that works created by state and local officials are usually copyright-protected and similarly, material created by private persons who are commissioned by the US government to prepare a work may be protected by copyright. • If you do incorporate government works into your podcast, you should also consider including in any copyright notice that accompanies the podcast a statement that identifies which portions of your podcast are protected by copyright and which are US government works. This is important for several reasons: (1) it allows people to know which works they can freely use and repurpose; (2) it removes the ability, if you bring an action against someone for infringement, for that person to argue that they did not have proper notice of the copyrighted status of your work. Copyrights

Music [theme music: royalty free, license, commissioned (work for hire)]

a) The Reproduction Right. b) The Public Performance Right c) Video Podcast: (i) synchronization (or “sync”) licenses (ii) “master use” licenses, and (iii) “videogram” licenses. Like the licenses for reproduction and public digital transmission of sound recordings (see previous section), these licenses do not fall within the mechanical licensing schemes and must be individually negotiated. Copyright

• Universal Music Group Files Lawsuit against Pokernews (iBusMedia) for Infringing Works on Podcasts • US District Court of Central California • Plaintiffs include: Universal Music Group Recordings, Capitol Records, Roc-A0Fella Records, Universal Music and PolyGram Publishing • Asking for up to $6 million in statutory damages • https://www.digitalmusicnews.com/2018/11/21/universal- music-group-v-pokernews/ Copyrights

• Creative Commons' licensed content is generally “podsafe” (i.e. is pre-cleared for use in podcasts) when your use is consistent with the applicable license terms.

• Creative Commons' licenses clearly signal to the public which uses you may make under the terms of the license and which uses require separate and specific permission is necessary. This means that it is important to check the terms of the applicable Creative Commons license to identify the relevant uses that are authorized in advance. Compliance with the terms of the Creative Commons license is necessary because otherwise the license terminates and then your use will become infringing.

• If you use Creative Commons-licensed work in your podcast, you will need to provide attribution in the manner specified by the author and/or licensor Trademarks

What gets trademarked? Logo, Name of Show, ??

Trademark Infringement – too similar likely to cause confusion

Trademark Dilution – weakens the value of the trademark

TM Disclaimer Example: [YOUR TRADEMARK] is a trademark of [YOUR NAME]. All other trademarks mentioned are the property of their respective owners. Trademarks

• Hollywood Chamber of Commerce vs. Kevin Smith Babble On Podcast • Issue of Lettering? • https://www.techdirt.com/articles/20180919/00260640668/hol lywood-chamber-commerce-trademark-bullies-kevin-smiths- podcast-over-hollywood-sign.shtml Monetizing

• Ads • FTC regulates advertising • Truth in advertising • FTC Guides • Endorsements • Saying you like this product or service and recommend it. • Make sure you disclose if you have received anything of value in exchange for a review, etc. • Testimonials • Telling your story of a use of a product or service. • Podcasters Errors and Omissions (E&O) insurance program underwritten by the Chubb Group of insurance companies Guest Agreements

• Managing guest expectations. • Release and consent to use interview. • Make sure the interviewee agrees to the interview, your adaptation of their responses (assuming you intend to adapt them) and to the inclusion of their responses in your podcast and the circulation of your podcast on the terms you choose. • In many interview scenarios, you may have an implied license to use the materials, but it safest to get your interviewee's written consent or (at minimum) record the interviewee's verbal consent before you use the interview in your podcasts. Guest Agreements

https://stownpodcast.org Guest Agreements

• S-Town, the Controversial hit Podcast, being Sued for Exploitation • Privacy Question: How much and in what context, is it acceptable to turn private citizens into public figures without their consent. • Summary: S-Town chronicled the life and death of John B McLemore. • Downloaded over 80 million times since March 2017. • His estate is suing saying the podcasters did not have permission from John to use “his identity in marketing the podcast or to explore many aspects of his personal life;” unauthorized uses of the interviews recorded for use in the podcast • Journalistic Ethics??

https://www.vox.com/2018/7/17/17581928/s-town-podcast-lawsuit-john-b- mclemore Podcast Don’t’s

• Don’t tell lies about people. (Libel) • Don’t reveal secrets about people (Invasion of Privacy) • Don’t say or do things that will hurt others' feelings (Emotional Distress). • Don’t steal content, music, audio clips, etc. (copyright and trademark infringement) • Don’t use a person’s name or likeness for commercial purposes without permission (Right of Publicity) Libel Lawsuit

• Self-proclaimed Bitcoin inventor Craig Wright has finally filed a lawsuit against the What Bitcoin Did podcaster Peter McCormack. (April 2019, UK)

• The podcaster simply tweeted ‘Served!’ alongside an image of the suit papers.

• In the suit, Wright accuses McCormack of libeling him by denying he is Satoshi Nakamoto, the pseudonymous creator of Bitcoin. McCormack had sent a tweet on April 10 not only denouncing Wright’s claim but also calling him a ‘fraud’.

• https://www.ccn.com/bitcoin-craig-wright-sues-podcaster-for- 130k/ Top Legal Podcasts (General)

• ABA – The Modern Law Library • http://www.abajournal.com/topic/the_modern_law_library • Bloomberg Law • https://www.bloomberg.com/podcasts/law • The Lawyerist Podcast • https://lawyerist.com/podcast/ • Legal Talk Network • https://legaltalknetwork.com • Layer 2 Lawyer • https://legaltalknetwork.com/podcasts/lawyer-2-lawyer/ Q&A or Shared Experiences Thank you!

Deborah Gonzalez, Esq. [email protected] @DG4DA Deborah Gonzalez, Esq., is an attorney and the founder of Law2sm, LLC. She is also the co-developer of the Digital Risk Assessment ™ tool that assists a company to ensure that their online activity is in line with state laws, federal laws, and regulatory compliance in partnership with DigitalRCP (www.digitalrcp.com).

She is a sought after speaker, content contributor, and news commentator. Deborah’s legal practice focuses on intellectual property, new media law (including social), and digital technology. She is the author of two Elsevier books: “Managing Online Risk: Apps, Mobile and Social Media Security” and “Online Security for the Business Traveler” both available on Amazon.com and Elsevier.com.

Deborah is a former Georgia State Representative for Athens, GA (HD117) and is currently a candidate for District Attorney for the Western Judicial Circuit.

Deborah is active on Twitter and you can follow her at @DG4DA.

PRIVACY UNDER ATTACK

<< Back to Table of Contents 13 Sept 2019

Privacy Under Attack: Complying with Regulations and Managing Risks

September 13, 2019

J. Scott Anderson, LL.M., CIPP/US Culhane Meadows PLLC (404) 806-1488 [email protected]

Resources, Training, White Papers, Reports, Conferences

iapp.org

1 13 Sept 2019

Resources

PRIVACY

What privacy means to people: 1. Person (Body) 2. Communications 3. Movement 4. Personal Information

What privacy means to lawyers: 1. Data = Property Law 2. Uses of Data = Contract Law 3. Breach of Policies = Tort, Administrative Law 4. Software, Online Activity = Internet Law

2 13 Sept 2019

PRIVACY

What people want:* 1. Notice • Practices * This is what elected representatives and government regulators have • Policies decided the people should want. • Updates • Breach 2. Choice • Selection of Data • Consent 3. Access • Review, Correct, Restrict, Delete, Complain 4. Enforcement • Regulation • Remedies

Sources of Data Protection

1. Markets 2. Technology 3. Self-Regulation 4. Law

3 13 Sept 2019

Privacy Laws & Regulations – The U.S. Approach

 Federal Trade Commission (FTC) • Section 6(a). Authority to conduct investigations. 15 U.S.C. § 46(a) • Section 5(a) provides that “unfair or deceptive acts or practices in or Spam affecting commerce … are declared unlawful.” 15 U.S.C. § 45(a)(1)

 Pockets of explicit regulation Credit Card Data Health Care: Financial Services: STATE HIPAA Gramm-Leach- RESIDENTS Bliley, Telemarketing: Dodd-Frank TCPA Email: CAN SPAM Credit: Genetic USG Agencies FCRA and = Activity-specific Information & Contractors: FACTA = Industry-specific Privacy Acts Electronic Health Children Records Online

FTC Enforcement Actions

1. (2017) FTC vs. Uber $148 million failure to reasonably secure cloud-based data storage 2. (2019) FTC, CFPB, States vs. Equifax $275 million failed to install security patch; hacked 4 months later 3. (2019) FTC v. Facebook $5 billion  violations of 2012 Consent Order  misrepresentations about uses of personal data  failure to disclose data sharing with third-party app developers  failure to adequately police app developers (Cambridge Analytica)

4 13 Sept 2019

FTC v. Facebook (2019)

SEC $100 million Misleading disclosures about the risks to the business caused by misuse of user data by third- party app developers.

Privacy Risks to Ordinary Business Entities

Do you collect, use, or process ‘personal information’ about your customers? or your employees? 1. Which laws and regulations apply to you? FTC (always) plus any Specific Regulations (HIPAA, FCRA, GLB Act, CAN-SPAM) State Privacy Laws, especially California (CCPA) The General Data Privacy Regulation (GDP) for E.U. Citizens 2. Ensure compliance by your vendors, affiliates, independent contractors, etc. 3. Secure your intangible assets (data, trade secrets, intellectual property) 43% of cyber attacks target small business (60% will close within 6 months) 4. Use experts to handle discrete tasks (web, payment, data storage). 5. Improve accessibility.

5 13 Sept 2019

Privacy Risks to Ordinary Business Entities

3. Secure your intangible assets (data security) WRITTEN INFORMATION SECURITY PROTOCOLS e-mail usage, passwords software updates access to servers use of personal devices firewalls virus protection encryption breach protocols

States with a “Comprehensive Privacy Law”

Level of Activity vs. Risks 1. Legal Risk 2. Reputational 3. Operational 4. Investment

6 13 Sept 2019

State Legislatures

https://iapp.org/news/a/us- state-comprehensive- privacy-law-comparison/

Remember: All 50 states, D.C., and U.S. territories have data breach notification laws, each with its own definitions and timelines.

State Laws

• Massachusetts – Requires a Written Information Security Program regarding the personal information of any resident. • Illinois – Biometric Information Privacy Act (BIPA), 740 Ill. Comp. Stat. 14/1 et seq. (2008) – Class action claims that Facebook’s facial recognition technology gathers biometric data without consent and violates the BIPA. – The 9th Circuit held • Plaintiffs have Article III standing because hey alleged harm to a “concrete privacy interest” protected by the BIPA. • District Court did not abuse its discretion in certifying the class. The questions of law or fact common to the class members predominate – regardless of where the alleged privacy violations took place. – Patel v. Facebook, Inc., No. 18-15982 (9th Cir., August 8, 2019)

7 13 Sept 2019

The California Consumer Privacy Act (CCPA) takes effect January 1, 2020

The CCPA applies if you do business in * A business “collects” personal California and you: information if it ‘gathers, obtains, 1. Have annual gross revenues of more receives, or accesses personal than $25 million. information, by any means, active or 2. Collect,* buy, sell, or share personal passive.’ information for at least 50,000 consumers, households, or devices Consumer Rights annually. 1) Link on business home page: “Do 3. Derive at least 50% of your annual Not Sell My Personal Information.” revenue from selling personal 2) “Do Not Track” Notice and Signal information. 3) Private right of action.

The General Data Protection Regulation (GDPR) took effect May 25, 2018

 Applicability is based on the user’s citizenship. If you have one customer who is a citizen of an EU memberIn the state, first year,you must more comply than: with the GDPR. o 500,000 Registered DPOs  Requirements: o 281,000 Cases  Appoint a Representative in EU o 144,000 complaints  Appoint a Data Protection Officer (DPO)o 89,200 Data Breach Notifications  “Data Controller” collects, stores, manages,o € transfers,56 Million controlsin Fines  “Data Processor” follows processing rules, keeps records  Joint and several liability for compliance, violations, fines, damages.  Company bears the burden of proving compliance.

8 13 Sept 2019

Handling Privacy Online - Compliance Challenges

1. Privacy Policy – internal standards, protocols, procedures 2. Privacy Notice – to users, employees Notice (alone), Consent, Opt-In or Opt-Out 3. Online Proof of Acceptance of Policy, Receipt of Notice Click-Through Agreements 4. Vendor Compliance 5. Website Issues 6. Social Media Accounts

Online Proof of Acceptance

Click-Through Agreements 1. Two Steps Step 1 – agree to the Policy itself. See, e.g., McGhee v. NAB (S. D. Calif. 2017) Step 2 – agree to proceed, enroll, open account 2. Notice on every page (continued use is subject to your agreement) 3. Must track and store proof of acceptance (identity, action, date) 4. Version control 5. No way to circumvent the online process 6. Material amendments require an updated policy, new agreement

9 13 Sept 2019

Click-Through Agreements

Consider the Platform, especially mobile devices: • Acceptance is not effective if content is blocked by a screen element. Metter v. Uber (N.D. Calif. 2017) (keyboard on mobile device blocked user’s view of the terms of service). • Privacy notices or contract terms which are buried far below an app’s download button are worthless. Wilson v. Huuuge (W.D. Wash. 2018). Users are not obligated to go hunting for disclosures. Obtain Acceptance for the Policy itself: • Including a link to a Privacy Policy at the end of the terms of service is not acceptance. Moreno v. San Francisco BART District (N.D. Calif. 2017) (user did not effectively consent to location tracking). • Using a clickable check box, alone, as part of the enrollment process “did not alert reasonable consumers to the gravity of … clicking the box.” Applebaum v. Lyft (S.D. New York 2017) (also noting that merely using text of a different color does not indicate the existence of a hyperlink to the Terms of Service for a reasonable consumer).

Click-Through Agreements

Freedom of Contract • Some institutions, especially banks and insurance companies, force the user to scroll down to the bottom of a Privacy Notice or Terms of Service before the “I Agree” button is presented. This is not required. • Failure to read a contract is not a defense to acceptance and formation. Peng v. Uber (E.D. New York 2017) (even when the contract is not presented in the user’s native language). • Users are free to click “I Agree” without reading the terms and conditions. (FaceApp)

10 13 Sept 2019

Click-Through Agreements

Handling Privacy Online – Vendor Compliance

VENDOR COMPLIANCE Every vendor, supplier, independent contractor, or other third party with access to your users’ personal information must agree to comply with your Privacy Policy. 1. Definitions: Is this party a data processor, controller, joint controller? 2. Data Security Protocols 3. Data Breach 4. Processing and Record Keeping 5. Cooperation with Audits, Inspections 6. Indemnification, Limitation of Liability

11 13 Sept 2019

Handling Privacy Online – The Company Website

“Let’s add a Facebook Like button!” • The code embedded in the Like button sends the user’s identity, the Like input, and the URL to Facebook for posting. • Under the GDPR, you are now a “data controller, jointly with Facebook” and therefore required to give additional notice to the user that clicking Like will collect and transmit personal data to Facebook. Fashion ID GmbH vs. Verbraucherzentrale NRW eV; Case C-40/17 (July 2019) (noting, specifically, that Fashion ID is not a joint controller for processing by Facebook after it receives the Like data). • Practical Impact: Fashion ID must update its website Privacy Notice to include social plugins. The trial court may decide that Fashion ID is required to obtain specific consent from each user who clicks the Like button.

Thank you!

J. Scott Anderson, LL.M., CIPP/US Culhane Meadows PLLC (404) 806-1488 [email protected]

12 J. Scott Anderson, LL.M., CIPP/US, is a registered patent attorney and a Certified Information Privacy Professional. His practice includes advising emerging companies and law firms regarding compliance with data privacy regulations in various states. Scott’s intellectual property practice includes all areas of patent law, including patent applications, infringement litigation, licensing, and joint development agreements. He earned his LL.M. in Intellectual Property in 2007 and has achieved the AV Preeminent® rating in the Martindale Hubbell legal directory. Scott is a partner with Culhane Meadows Haughian & Walsh PLLC, the largest women-owned, nationwide, full-service law firm in the U.S. and one of the largest cloud-based law firms in the world.

BLURRED BOUNDARIES – EMPLOYEE DISCIPLINE AND RIGHTS IN THE AGE OF SOCIAL MEDIA

<< Back to Table of Contents BLURRED BOUNDARIES Employee Discipline And Rights In The Age Of Social Media

Gregory D. Jay Chandler, Britt & Jay, LLC

The workplace is not immune from the impact of social media on our society. Indeed,

high-profile controversies are now commonplace arising from employees being disciplined for

publically posted commentary on Facebook, Twitter, and other forums. These instances raise

serious questions as to the intersection of first amendment rights and the employer’s interest in a

conducive work environment and its reputation with the public. Unlike perhaps a letter to the

editor decades ago or a private phone conversation, a social media post can be widely disseminated in minutes and the exposure is immediate and wide-spread.

Private vs. Public Sector Employment.

Private sector employees Generally, a private employer has significantly more freedom

and latitude in preventing or disciplining an employee’s political expression or activities. A private employee’s first amendment rights are substantially diminished. An employer can restrict what information that employees post and tell them not to undertake certain activities. These restrictions are not just limited to the workplace or limited to commentary regarding the employer. Given the proliferation of boycotts and socially conscious consumers, employers are especially protective of their image and the inferences that can be drawn from certain political stances. Restrictions may extend to political speech outside the workplace.

A few exceptions exist in the context of a private employer:

(a) Unions/National Labor Relations Board: speech related to work conditions or

concerted activity is often protected by the National Relations Labor Board (NLRB)

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which is responsible for enforcing the Act and other union collective bargaining

agreements. The NLRB has recently taken a tough stance against social media

policies which it deems too broad or vague in nature. For instance, the NLRB

rejected a car dealership’s social media policy that prohibited employees from

disclosing information about employees or customers; required them to identify

themselves when posting comments about the dealership; prohibited them from

referring to it in a way that would negatively impact its reputation; prohibited any

conduct that even had “the potential to have a negative effect” on the dealership;

and allowed the dealership to request access to anything they posted on social

media. 62 NLRB No. 83 Boch Imports, Inc. d/b/a/ Boch Honda.

(b) Employee handbook/contract: A private employer may maintain a social media

policy as set forth in a handbook or contract that gives the employee some

affirmative rights or establishes boundaries in which the employee can comment.

Public Employees Unlike employees in the private sector, public sector employees enjoy

first amendment rights both at the workplace and at home. A number of constitutional doctrines

are implicated. As one would imagine, case law has not yet caught up to new burgeoning

technology and communication.

The broad standard that the courts employ in determining if an employment-related decision is valid based on speech provides that (1) the employee much show the speech addresses a matter of public concern; and (2) whether the employee’s free speech interests outweigh the employer’s efficiency interests. Once the employee demonstrates that the speech in question is a matter of public concern, the court will evaluate if the speech (1) impairs discipline or the work environment; (2) undermines relationship amongst employees where confidence and loyalty is

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necessary and (3) interferes with the normal operation of the employer’s business.

Pickering v. Board of Education arose when a local school board terminated school teacher

Marvin Pickering. Pickering wrote a letter to the editor of the local paper complaining about the school board’s handling of finances and allocation of funds allegedly favoring athletics over

academics. 391 U.S. 563 (1968). The School Board stated the allegations were false and

concluded that publication of the letter was "detrimental to the efficient operation and

administration of the schools of the district" and that the interests of the school require[d]

Pickering’s dismissal. Justice Thurgood Marshall wrote for the Court and stated

The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.

The Court held that Pickering’s statements which were substantially correct regarded matters of public concern and presented no questions of faculty discipline or harmony; hence those statements afforded no proper basis for the Board's action in dismissing appellant. Since no evidence existed that they would interfere with Pickering’s teaching obligations or performance, the Court reasoned the comments were thus entitled to the same protection as if they had been made by a member of the general public.

Garcetti v. Ceballos subsequently distinguished Pickering when it held that when a public

employee makes statements pursuant to their official duties, they have no free speech protection.

Caballos was an assistant district attorney who was critical of a search warrant. He voiced his

concern to supervisors and later authored a memo. 547 U.S. 410 (2006). He was ultimately called by the defendant in a motions hearing where he was again critical of the underlying affidavit supporting the warrant. He asserted that he was subjected to retaliatory actions, transferred, and denied promotions. Anthony Kennedy wrote for a narrow majority that the First Amendment does

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not prevent employees from being disciplined for expressions they make pursuant to their

professional duties.

Employee comments on social media is easily distinguished from the holding in Garcetti

because when someone is posting on Facebook, Twitter, etc. they are not typically engaging in on- official, on-duty speech. Some commenters believe that when employees are speaking on social media they are doing so as private citizens and thus more akin to Marvin Pickering’s letter to the editor. Yet, where an employee’s speech creates disruption in the work environment or negatively damages an employer’s reputation or image, courts may be less accommodating to the employee.

Given our toxic political environment, posts on such matters as race, religion, and other socio- economic groups certainly create a quandary.

Lower court first amendment/social media cases:

• An EMT/medical helicopter pilot, who repeatedly reported a lack of required federal

certification of a Medstar helicopter to his employer before going to the FAA and social

media, survived a motion to dismiss his First Amendment retaliation claim based on

his termination. His speech was not part of his regular duties, addressed a public

concern, and a federal court in Florida found no legitimate government interest in

disciplining an employee for disclosing malfeasance, especially where he gave the

county a chance to address the issues before going public (McAllister v. Lee County).

• Only one of two police officers disciplined for an off-duty Facebook conversation

about rookie cops in leadership positions was protected by the First Amendment. The

federal court in Virginia found it significant that there was no showing that his

comments created a “reasonable prediction of harm” to police operations. But the

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police chief was protected by qualified immunity since reasonable officials in his

position would not know that disciplining an officer for a Facebook post under

department policy would violate constitutional rights. The city was not liable because

it never ratified the social networking policy (Liverman v. City of Petersburg).

• A fired assistant attorney general did not engage in protected speech when he embarked

on an online and televised crusade against a gay student affairs president, ruled a

Michigan appeals court. His interest was outweighed by the employer’s interest, and

the First Amendment did not require the Attorney General to “sit idly by” while he

insulted those he was hired to serve and protect (Shirvell v. Department of Attorney

General).

• Finding that a police officer’s “hot-headed” Facebook posts criticizing the police

chief’s leadership for failing to send a patrol car to a fallen officer’s funeral were made

as a citizen, and perhaps stemmed from a “genuine desire to inform the community,”

the Fifth Circuit refused to allow the “‘mere insertion of a scintilla of speech regarding

a matter of public concern’ to ‘plant the seed of a constitutional case.’” Further, the

department’s interests in maintaining discipline and preventing insubordination

outweighed the officer’s First Amendment interest here (Graziosi v. City of Greenville

Mississippi).

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CASE STUDY

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CASE STUDY

In a series of tweets, ESPN personality Jemele Hill said Donald Trump's statements, actions and hires reveal him to be a white supremacist.

Jemele HillVerified account@jemelehill · 11 Sep 2017 Donald Trump is a white supremacist who has largely surrounded himself w/ other white supremacists.

Jemele HillVerified account@jemelehill · 11 Sep 2017 Trump is the most ignorant, offensive president of my lifetime. His rise is a direct result of white supremacy. Period.

Jemele HillVerified account@jemelehill · 11 Sep 2017 No the media doesn't make it a threat. It IS a threat. He has empowered white supremacists (see: Charlottesville).

Jemele HillVerified account@jemelehill · 11 Sep 2017 He is unqualified and unfit to be president. He is not a leader. And if he were not white, he never would have been elected

Jemele HillVerified account@jemelehill · 11 Sep 2017 Donald Trump is a bigot. Glad you could live with voting for him. I couldn't, because I cared about more than just myself

Jemele HillVerified account@jemelehill · 11 Sep 2017 And it's funny how you cling to Benghazi but I bet you didn't give one thought to what Trump said about the Central Park 5

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Gregory D. Jay joined the firm following its inception in 1993, and concentrates his practice in the areas of local government law and estate planning and probate. In addition, he assists a number of clients in general business and corporate matters including entity formation, transactional matters, and commercial litigation. As City Attorney to the cities of Braselton, Buford, and Suwanee, Mr. Jay advises his clients on such matters as zoning and land use, personnel, public finance, eminent domain and utility regulation. He also serves as attorney to the Buford City School System and has represented a number of local governments in the metropolitan Atlanta area. Active in numerous community causes, Mr. Jay serves on the Executive Committee and Board of Directors of the Gwinnett Chamber of Commerce and is a member of the Buford-North Gwinnett Rotary Club and formerly served as Chairperson of his daughter’s elementary and middle school council.

Education • University of Georgia – B.B.A Finance (summa cum laude with highest honors) • University of Georgia School of Law – Juris Doctorate, Georgia Journal of International and Comparative Law, Notes Editor

Professional Associations and Civic Activities • Executive Committee, Gwinnett Chamber of Commerce • International Municipal Lawyers Association • Council of School Board Attorneys • Graduate, Leadership Gwinnett • Buford-North Gwinnett Rotary Club • Gwinnett County Bar Association • Legal Counsel, Gwinnett SPLOST Advocacy Committee

SOCIAL MEDIA SECURITY UPDATE

<< Back to Table of Contents Jodi Daniels is a Certified Informational Privacy Professional (CIPP/US) with more than 20 years of experience helping a range of businesses from solopreneurs to multi-national companies in privacy, marketing, strategy, and finance roles. During her corporate career, she proved a valuable asset to companies like Deloitte, The Home Depot, Cox Enterprises, Bank of America where she most recently served as the privacy partner for Digital Banking and Digital Marketing. Ms. Daniels started her privacy career by creating the comprehensive privacy program at Cox Automotive. She launched an online advertising network for Autotrader and Kelley Blue Book.

Since launching in 2017, Red Clover Advisors has helped hundreds of companies create privacy programs, achieve GDPR, CCPA, and US privacy law compliance, and establish a secure online data strategy their customers can count on. Jodi makes privacy easy to understand by breaking it down into measurable steps using plain language her clients can relate to. She passionately supports the idea that privacy is more than just compliance and concern over fines. It's a human right we all deserve. She has made it her mission to help businesses build trust and transparency with this core value at its foundation.

Jodi has been featured in CIO and ITSP Magazine and a key speaker at EIQ – The Intelligence Email Gathering Conference, Elite Digital Summit, Digital Analytics Association, The Digital Analytics Power Hour Podcast, Atlanta Compliance & Ethics Roundtable (GDPR & Data Ethics), IAPP (Information Association Privacy Professionals) Atlanta, ISACA, Women in Wireless Technology Forum, Wireless Technology Forum, SecureWorld, AIMA (Atlanta Interactive Marketing Association), Atlanta Technology Development Center at Georgia Tech, Emory University, State Bar of Georgia, The Dana Barrett Show and more.

Jodi holds a Masters of Business Administration and a Bachelor of Business Administration with a concentration in Accounting from Emory University’s Goizueta Business School. She lives in Atlanta, GA with her husband, two little girls, and a big fluffy dog named Basil. REVIEWS AND ENDORSEMENTS

<< Back to Table of Contents Legal Ethics & Social Media

Paula J. Frederick State Bar of Georgia

ABA Model Rule 1.1: Competence

A lawyer shall provide competent representation to a client. Comment 8

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology… Are Lawyers Social Media Savvy?

Why Electronic Discovery is the Flashpoint: Lawyers are Still Bad at It

Just & Speedy: On Civil Discovery Sanctions for Luddite Lawyers by Michael Thomas Murphy --George Mason Law Review 25:1, 2017 Using Social Media in Cases

• Advising Clients re their social media presence during litigation • Investigating clients, adverse parties, witnesses, judges, etc. Marketing

• Why your personal social media activity might be the Bar’s business

• Is your social media activity PERSONAL or PROFESSIONAL? Robin Frazer Clark April 10 · I am just an onlooker today in court, watching fellow trial lawyer Katherine McArthur kick butt! — at Fulton County Courthouse.

I’m just an onlooker today in court, watching fellow trial lawyer XXX kick butt -- at Fulton County Courthouse It’s advertising!

• D.C. Ethics Opinion 370 (November 2016). "Social media sites, postings or activities that mention, promote or highlight a lawyer or a law firm are subject to and must comply with" lawyer advertising rules. • http://www.dcbar.org/bar-resources/legal- ethics/opinions/Ethics-Opinion-370.cfm It’s advertising! NY City Bar Ethics Opinion 2015-7

• Social media profile such as LinkedIn is an advertisement if five criteria are met: – (a) it is a communication made by or on behalf of the lawyer; – (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; – (c) the LinkedIn content relates to the legal services offered by the lawyer; – (d) the LinkedIn content is intended to be viewed by potential new clients; and – (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising. Rule 7.1

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. Rule 1.6-Confidentiality of Information

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). Rule 1.6 cont.

• (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: • (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client…or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; In 2005, most clients found lawyers through personal connections. 65% of the individuals in a poll said they would ask a friend or relative first if they were looking for a lawyer.

By 2018, 76% said they would search the internet first. The number asking for recommendations from friends and family dropped to 29%. ABA Opinion 480

Confidentiality Obligations for Lawyer Blogging and other Public Commentary • March 6, 2018

Lawyers who blog may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules ABA Opinion 10-457

Lawyer Websites • Rule 7.1 applies • Must update frequently • Beware of inadvertent lawyer/client relationships ABA Opinion 479

• The “generally known” exception to former client confidentiality

Former client information is confidential too

May not use information unless it has become generally known Opinion 479 cont.

Only applies to use, not disclosure of information Information must be either widely recognized by members of the public in the relevant area, or Widely recognized in the former client’s industry, trade, or profession.

Can you respond to a negative review? Lawyers Reacting Badly

In the Matter of Steele (Indiana, 2015) In the Matter of Underhill (Colorado 2015) In the Matter of Tsamis (Illinois, 2014) In the Matter of Skinner (Georgia, 2014) I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co- worker are what caused the consequences he is now so upset about. --In the Matter of Tsamis Illinois, 2014 The Streisand Effect More reasons not to respond

• It’s hard to get internet service providers to remove a post.

• Federal law shields internet service providers from legal responsibility for statements posted by others. 1996 Communications Decency Act. If you do respond

• Check whether your jurisdiction has an advisory opinion on the subject: Bar Assoc of San Francisco—Opinion 2014-1 (may respond, but may not disclose confidential information without client consent; PA Bar opinion 2014-200 (response must be proportional and constrained. Negative review does not trigger the self-defense exception in 1.6) NY State Bar Opinion 1032 (may not reveal 1.6 info solely to respond to criticism on website) • Pennsylvania Ethics Opinion 14-300. "This Committee concludes that: • *** • 2. Attorneys may connect with clients and former clients. • *** • 6. Attorneys may accept client reviews but must monitor those reviews for accuracy. • 7. Attorneys may generally comment or respond to reviews or endorsements, and may solicit such endorsements. • 8. Attorneys may generally endorse other attorneys on social networking websites. • ***." • http://www.pabar.org/members/catalogs/Ethics%20Opinions/form al/f2014-300.pdf • Los Angeles County Ethics Opinion 525 (California 2012) An attorney can publicly respond to a former client's disparaging comments. • "Attorney may respond to Former Client’s internet posting, so long as: • (1) Attorney’s response does not disclose confidential information; • (2) Attorney does not respond in a manner that will injure Former Client in a matter involving the former representation; and • (3) Attorney’s response is proportionate and restrained." • http://www.lacba.org/docs/default-source/ethics- opinions/archived-ethics-opinions/ethics-opinion-525.pdf If you do respond: What’s good for the Lawyer is good for the Client! • Focus on the underlying source of client dissatisfaction. • Take a hint from other service providers: Contact the dissatisfied former client; Ask the writer to post an update Try to fix the problem Ask satisfied clients to post positive reviews • Admit mistakes

LAWYERS, SOCIAL MEDIA & COMMON SENSE

Christina Petrig Updated by Paula Frederick State Bar of Georgia Atlanta, Georgia

LAWYERS, SOCIAL MEDIA & COMMON SENSE

THE SAME RULES APPLY

While the collective phenomena known as social media have created a new world in general, there is no specific reference to new modes of communication in the Georgia

Rules of Professional Conduct. Social media postings are written communications, albeit communications with potential infinite reach and duration. All the Rules of

Professional Conduct apply to things lawyers do on social media as lawyers. For all content that you post online, carefully consider whether you are confident that it would not violate any ethics rules if placed on a billboard or other print media. For purposes of this discussion, the term “social media” includes postings on your website and lawyer review sites as well as Facebook, LinkedIn, and Twitter.

Pay particular attention to Rules 1.6 (confidentiality); 7.1 through 7.5

(communications concerning a lawyer’s services/lawyer advertising); 3.5 (ex parte communications with judges, jurors, prospective jurors, or other officials); 3.4 (altering, destroying or concealing material having potential evidentiary value); 3.6 (trial publicity); 4.1 (truthfulness in statements to others); 4.2 (communication with a person represented by counsel); 4.3 (dealing with unrepresented persons); 8.4 (professional

conduct involving dishonesty, fraud, deceit or misrepresentation; also prohibits violating the Rules of Professional Conduct through the acts of another); and 5.3

(responsibilities regarding non-lawyer assistants).

I. CONFIDENTIALITY: RULE 1.6

Self-Promotion and Self-Defense on the Internet1

Unauthorized disclosure is a recurrent, central problem in both of these arenas.

Rule 1.6(a) states the lawyer’s affirmative obligation:

A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these Rules or other law, or by order of the Court.

Note first that the language – “all information gained in the professional relationship with a client” – presumptively extends the confidentiality obligation beyond information protected by the evidentiary attorney-client privilege, and beyond information the client has specifically identified as confidential. See Comment [5] to

GRPC Rule 1.6. Common sense notions of what would be considered “confidential” are thus not reliable guides. For example, information may be confidential for Rule 1.6 purposes even though it might also be lawfully obtained by others, outside of the

1 This section of the materials was authored by William J. Cobb, Assistant General Counsel, State Bar of Georgia, and is included with express permission. 3

attorney-client relationship or discovery rules. Your default presumption should be that if you got the information as part of representing a client, it is confidential regardless of source; then you can think about whether one of the rule’s exceptions applies.

Second, information may be confidential because of the potential effect of disclosure, rather than because of the source of the information. If disclosure would be

“embarrassing” or likely “detrimental” to the client, it is protected. Thus, though perhaps initially counterintuitive, the mere fact that information may be in the public domain in some fashion does not automatically mean it can be disclosed without client consent, if a lawyer has learned it in the course of representing the client.

Publicizing Successful Results

Whether on a lawyer’s web site, a social media post, a blog, a discussion group, a comments thread or any of the myriad opportunities for on-line promotion, letting peers and potential clients know about a lawyer’s successes has obvious value for building reputations, attracting new clients and increasing revenues. It is easy to think, why would a client object to publicizing a great outcome? It means they “won” or at least attained their goal, and if it was litigation, it is highly likely to be a matter of public record already. So what’s the problem?

The answer becomes clear when one remembers that (1) confidentiality includes an “effects test,” and (2) the audiences of public records of court proceedings are highly likely to be not only different than, but often infinitesimal in number compared to the

potential recipients of the same information posted on the Internet. What if the success was acquittal of a client charged with aggravated sexual battery of a child? The truth of that result, and its existence in the “public record,” perhaps even in the news media, does not diminish the fact that for most such clients it would be both embarrassing and highly likely to be detrimental in any number of ways. Such disclosure without client informed consent would almost certainly violate the ethical obligation imposed by Rule

1.6.

Many situations will be far less black and white than that example. The simple, foolproof (if there is such a thing) solution is explicit in Rule 1.6(a) itself: disclosure is prohibited “unless the client gives informed consent.” Informed consent is a defined term which “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” GRPC

Rule 1.0(h). Always obtain informed consent before posting any information about a client’s case or matter anywhere.

What the client needs to know in order to make an informed decision will vary according to what is to be posted and where. It is impossible to list all possible considerations, but here are a few examples: Will the post be in the form of a client testimonial, or just be about the client’s case? Will the client be named or remain anonymous (beware the possibility of revealing identity from the facts)? Will it appear on the lawyer’s web site, intended to be seen only by those who choose to explore the site? (If so, will it appear prominently on the home page? Under a testimonials tab? As

part of a slide show?) Or will the post be actively disseminated via Facebook, blog, tweet, discussion group or other “push” platform? In the latter case, who is the potential audience?

In addition, think about possible unintended consequences. For example, it may not be possible to limit posted information to a lawyer’s web site, and it is likely impossible to assure that only someone browsing that web site will see it. Google and others use automated web crawlers to constantly amass, archive, package and redistribute information in various ways for various purposes. So one simple question that perhaps the client should always be asked is this: Are you comfortable with the possibility that the posted information may pop up in a Google or Yahoo! search, say by a relative or a potential employer?

All such questions interact closely with what information, exactly, a client is willing after informed consent to disclose. You will have greater protection if the client consents to the verbatim content and exact location of the posting, and to the details and context of the posting within that location to the extent that is reasonably practicable.

And while Rule 1.6 does not require it, written consent signed by the client is good prophylactic practice.

Defending Yourself Against On-line Criticism By Clients: Can You? Should You?

Web sites like AVVO and Facebook present positive opportunities for lawyers, but the reverse is also true. What can you ethically do if an unreasonable, irate client or former client attacks you on-line with false statements and accusations, apart from a

defamation action? Can you respond on-line using truthful information that otherwise would be protected from disclosure by GRPC Rule 1.6, without obtaining client consent?

Rule 1.6(b)(1)(iii) states:

A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably believes necessary . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

An on-line attack obviously is not a criminal charge or civil claim, nor is it in a proceeding. Is it a “controversy”?

The best answer in Georgia at this time is that in these circumstances disclosure not explicitly authorized by the client is very risky. In 2014, the

Georgia Supreme Court for the first time imposed discipline on a lawyer for disclosing confidential client information online, in response to negative comments about the lawyer posted by a former client on three consumer web sites. In the Matter of Skinner,

295 Ga. 217 (2014). That case involved an uncontested divorce with long delays, increasing client dissatisfaction, and eventually a fee dispute and change of counsel.

After the former client posted “negative reviews” with unspecified content, the lawyer responded by posting the client’s name and employer, the amount paid to the lawyer, the county in which the divorce was filed, and a statement that the former client had a boyfriend. The Court had no difficulty concluding that those disclosures violated Rule

1.6, without need for any analysis or explanation.

The Skinner case should give lawyers great pause before disclosing any client information in response to client criticism, though it may not definitively resolve the issue in all circumstances. The unauthorized disclosures in Skinner were apparently so out of bounds in relation to the client reviews that the “controversy” exception of Rule

1.6 never came up. However, there is good reason to doubt that the exception will be recognized in this context if the Court does address it, not least because the legal definition of “controversy” simply does not fit online disputes like this:

A litigated question; adversary proceeding in a court of law; a civil action or suit, either at law or in equity. . . . It differs from “case,” which includes all suits, criminal as well as civil; whereas “controversy” is a civil and not a criminal proceeding.

Black’s Law Dictionary Free On-line 2d Ed. (accessed October 9, 2013)(internal citations omitted). The few ethics decisions on point in other jurisdictions are mixed, and the summary in the ABA Annotated Model Rules at pp. 122-123 (2015) includes the statement that “[m]ere criticism of the lawyer, however, may be insufficient to warrant disclosures in self defense, even when the criticisms appear in the press.”

For anyone willing to risk violating Rule 1.6 in these circumstances, the question still remains: Should you defend with disclosure of information about the client or case, or even defend at all? One school of thought is that, as professionals, lawyers should just accept this sort of thing as an occupational hazard and ignore it. (If it is a recurrent problem, that may well suggest that the lawyer has an actual underlying problem.) Most on-line denizens recognize by now that over-the-top criticisms are ubiquitous on the

Internet, and would not expect lawyers to be immune from them. One libelous rant, this

thinking goes, is therefore unlikely to drive away droves of potential clients, and if it cannot be taken down it will eventually drop off, become submerged and/or be an obvious outlier.

Others suggest that if a response is deemed essential, it should be extremely limited and disclose no client information at all. Something like, “I respectfully disagree,” and/or “Confidentiality rules prevent me from responding.”

A non-disclosing response like the just stated examples would avoid a Rule 1.6 violation, but it is this author’s view that pragmatic considerations nevertheless counsel against responding even to false and malicious attacks, at least as a long term strategy.

Even such a short, fact-free response is virtually certain to generate additional vitriol, and then what do you do? Each increment of additional content is likely to add fuel to the fire and bulk to an exchange that could easily tilt towards the unseemly. In addition, put yourself in the position of a potential client who sees this back and forth. Might not he or she naturally wonder if this publicly played out dispute portends undesirable conflict if the lawyer and potential client come to be at odds about the conduct or outcome of a case?

Nevertheless, the potential harm of a critical post should be weighed against the potential impact of responding or not responding on a case by case basis. You might decide, for example, that silence in the face of a critique that appears superficially credible and serious, not an over-the-top rant, would be more damaging to you than whatever fall-out a response would cause. Remember, however, that any disclosure of

information covered by GRPC Rule 1.6 carries a very high risk of violating the rule no matter what.

All of the above notwithstanding, GRPC Rule 1.6 does not preclude lawyers from pursuing civil remedies for wrongful criticism or accusations posted by clients. A lawsuit is without doubt a controversy excepted from the Rule 1.6 prohibitions,2 and in

2014 a Georgia lawyer prevailed rather dramatically against a former client’s false representations while a client, and baseless criticisms later posted online. She obtained a substantial verdict based on fraud, libel per se, and false light invasion of privacy.

Pampattiwar v. Hinson, 326 Ga.App. 163 (2014).

Finally, a word about Better Business Bureaus. Through the ethics advice hot- line, the Office of the General Counsel has seen some instances where standard BBB practices, which apparently vary from place to place, directly conflict with lawyers’ ethical obligations to their clients. For example, the BBB may forward a client complaint to the lawyer and ask for a substantive response before the BBB decides how to take the complaint into account in its “scoring” of the lawyer or firm as a business. To respond as requested would certainly violate GRPC Rule 1.6, but in one instance that caused a firm to get an “F” rating on the local BBB site. If you receive such a request, this author advises a strong response pointing out the ethical obligation of confidentiality about clients and their cases, the lawyer’s refusal to breach that ethical duty, the disciplinary consequences of breach even if the lawyer was so inclined, and taking the bureau to task for even considering imposing a ratings penalty for doing what

2 Of course, the lawyer’s claims must be meritorious within the meaning of GRPC Rule 3.1. 10

is ethically both required and right. There is at present no data regarding the effectiveness of that approach.

II. ADVERTISING & MARKETING: RULES 7.1—7.5

Communications that you make to the public regarding your services must comply with Rules 7.1 through 7.5. If you have a professional presence on social media, it is likely that the content, if available to the public, will be considered as advertising and thus will need to be compliance with the advertising rules. Your communications cannot be false, fraudulent, deceptive or misleading. Rule 7.1(a)(1)-(5) provides an illustrative list of communications that would violate this rule. All communications must contain your name. Rule 7.2 requires various disclosures regarding the location of your practice, whether it is a referral practice, use of spokespersons and portrayals, and information about fixed fees.

Many lawyers used LinkedIn as a networking and marketing tool. Some lawyer rating sites, such as Avvo, allow the lawyer to post information and also allow endorsements. Obviously, any content that you post must be truthful. A problem arises if others, such as colleagues, friends or clients, post endorsements that are exaggerated or make claims that you could not make for yourself. For example, if someone says that you have vast experience or expertise in an area of law that you do not in fact have, you

need to take all actions permitted by the site to remove the statement or add a corrective statement.

The space limitations of Twitter will not allow for the information that is generally required to be provided in lawyer advertisements. However, it can be appropriately used as a marketing tool for posts in which you show that you are knowledgeable and following legal developments, such as links to news items or important legal developments.

III. TRIAL PUBLICITY: RULE 3.6

Even if you have your client’s informed consent to publicly comment on a matter, remember your duties under Rule 3.6 which provides as follows:

a. A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a person would reasonably believe to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. b. Reserved. c. Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. d. No lawyer associated in a firm or government entity with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Tweets or Facebook posts or blog entries from the courthouse are not a wise idea. They are definitely extrajudicial statements widely disseminated, so the only remaining

question is whether there is a substantial likelihood of materially prejudicing the adjudicative proceeding. And, as discussed above, they may violate confidentiality.

IV. COMMUNICATIONS WITH WITNESSES & PARTIES

RULES 4.2, 4.3 & 8.4

Rule 4.2 provides that a lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. As indicated in Comment 3, the rule applies to communications with any person, whether or not a party to the formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates.

Rule 4.3 provides that when dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:

a. state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding; and b. give advice other than the advice to secure counsel, if a lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of a client.

There is no prohibition on viewing any information that a party or witness has publically posted. The problem arises if you attempt to “friend” or otherwise communicate with the person. You obviously cannot communicate with an opposing party who is represented by counsel. But what about witnesses when you do not know whether or not they are represented? Can you send a friend request to a witness? The safest answer is no. However, given that it is not expressly prohibited by the language of

Rule 4.3, and Georgia has not yet issued an advisory opinion on the issue, if you insist on attempting such a communication, you should take great care to disclose your identity, your role, and ask whether the person in represented. You should act as you would in placing a phone call or sending a letter to that person. The problem is that the process of a “friend” request may not allow the opportunity to provide the information that is necessary for a legitimate contact.

Remember that you cannot have someone else—such as your client, an employee, or an investigator—do that which you could not ethically do yourself. Rule 8.4(a)(1).

V. JUDGES & JURORS

RULE 3.5: INPARTIALITY AND DECORUM OF THE TRIBUNAL

A lawyer shall not, without regard to whether the lawyer represents a client in the matter: a. seek to influence a judge, juror, prospective juror or other official by means prohibited by law; b. communicate ex parte with such a person except as permitted by law; c. communicate with a juror or prospective juror after discharge of the jury if: 14

i. the communication is prohibited by law or court order; or ii. the juror has made known to the lawyer a desire not to communicate; or iii. the communication involves misrepresentation, coercion, duress or harassment. d. engage in conduct intended to disrupt a tribunal.

Judges are responsible for their social media conduct under the Judicial Canon of

Ethics. It is unwise at best for judges and lawyers to communicate as “friends” on

Facebook, particularly when the lawyer has a matter pending before the judge and/or regularly has cases with that judge.

The social media trails of jurors and potential jurors are of obvious interest to lawyers trying a case. As with an opposing party or witness, there is certainly no problem with viewing information that is publicly available. It should go without saying that attempting to communicate with a juror through social media is as forbidden as a phone call or hallway conversation. While such a communication after discharge may be permissible, you should ensure that you fully identify yourself and your purpose in making any such contact.

VI. HAVE AND ENFORCE AN OFFICE POLICY ON SOCIAL MEDIA

Rules 5.1 and 5.3 impose a duty to supervise subordinate attorneys and non-attorney staff to ensure that their conduct is compatible with your professional obligations. Have a clear policy to ensure that your staff understands the ethical implications of use of social media. As Rule 8.4(a)(1) provides that it is a violation of the Rules of Professional

Conduct to violate or knowingly attempt to violate the Georgia Rules of Professional

Conduct, knowingly assist or induce another to do so, or do so through the acts of another, social media conduct of your staff, or even your client could haunt you.

VII. MISCELLANEOUS CAUTIONS

BEWARE OF FORMING UNINTENDED ATTORNEY-CLIENT RELATIONSHIP

If you choose to answer questions from potential clients or participate in online forums, be careful to use cautionary language and disclaimers. Keep your answers generic and avoid specific facts. Remember also that social media communications with strangers can result in conflicts of interest. If someone is providing you with specific facts, you need to know his/her real name for your conflicts database.

BEWARE OF UNAUTHORIZED PRACTICE

Your communications online know no state line boundaries. Be clear about where you are licensed and disclaim any advice as to residents of other states.

VII. CONCLUSION

No advisory opinions have been requested in Georgia on lawyers’ use of social media. With the exception of the Skinner case discussed herein, there are no disciplinary decisions in Georgia involving social media. Appended is a list of some advisory opinions from other states. They reach differing conclusions, and are not

authoritative for Georgia lawyers. However, they are useful in illustrating the reasoning involved in applying the rules to new modes of communication.

While the technological aspects sometimes matter (such as whether a juror can discern that his/her social media site has been viewed by a lawyer), you will generally stay safe by considering your social media activity through the same ethics lens as your communications activity in traditional modes.

Paula Frederick is General Counsel for the State Bar of Georgia, a unified bar organization with 48,000 members. The Office of General Counsel is responsible for interpreting the ethics rules for lawyers, prosecuting lawyer discipline cases, and providing legal advice to the officers and directors of the State Bar.

Paula is a 1982 graduate of Vanderbilt University School of Law and a 1979 graduate of Duke University. Before joining the Office of the General Counsel she spent six years as a staff attorney with the Atlanta Legal Aid Society handling civil legal matters for low-income people.

Paula is a Past President of both the Atlanta Bar Association and the Georgia Association of Black Women Attorneys. She is an active member of the American Bar Association, where she serves as Chair of the Standing Committee on Professional Discipline, Georgia delegate to the Nominating Committee, and a member of the House of Delegates. She is a member of the Executive Committee of the Lawyers Club of Atlanta and serves on the Board of Georgia Appleseed.

APPENDIX

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Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

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