LinkedIn to Facebook Social Networking.ppt · 2011-08-23 · LinkedIn to Facebook: Social Networking and Regulatory Practice September 8-10 Pittsburgh, Pennsylvania 17 Model Rule

CLEAR 2011 Annual Educational ConferenceLinkedIn to Facebook: Social Networking andRegulatory Practice

September 8-10

Pittsburgh, Pennsylvania 1

Presenters:

Promoting Regulatory Excellence

James A. WilsonAttorney at LawDurham, North Carolina

LinkedIn toFacebook: SocialNetworking and

Regulatory Practice

Look What We’re Up Against

• “CLEAR has been working diligently toincorporate Social Media elements intothis year's conference . . . Be sure tocheck out CLEAR on Facebook, Twitterand LinkedIn to get all of the up-to-the-moment information about what isscheduled this year and to connect withother attendees!”

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• “Since the 2011 CLEAR AnnualConference Facebook page is a newaddition this year, take this opportunityto explore the page and all it has tooffer.”

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September 8-10



• “As an added bonus, anyone who visitsthe Facebook page and posts a commenton the Wall or in one of the Discussionsby September 1st will be entered into aspecial prize drawing at the OpeningReception!”

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Social Media

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Social Media

• Web-based or mobile technologies

• Interactive communications

• User-generated content

• Accessible

• Scalable

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September 8-10


Popular Social Networks

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September 8-10



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September 8-10


HOSTAGE TAKER UPDATESFACEBOOK IN MIDST OF STANDOFF

• Valdez was apparently being served awarrant for a drug offense, took someonehostage and barricaded himself in amotel room.

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• I’m currently in a stand off wit theseshady --- from [OPD, Ogden police], kindaugly but ready for whatever, I love uguyz and if I don’t make it out of herealive that I’m in a better place and uwere all great friends….

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• They shut our phones down but wereokay, everyones comments mean alot.But how this ends is on the cops now.And my HOSTAGE as they call her isperfectly fine and holding it down witme….

• He then adds pictures of himself and thehostage.

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September 8-10



• SWAT came in an hour later, whereValdez reportedly shot himself. Policehave stated no officer had fired theirweapon. Other posts on the Facebooksuggest the police are currently diggingthrough the Facebook page andinvestigating who may have been helpingValdez during the crisis.

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facebook gets weird – part 2

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Prevalence of Social Media Use

• 75% of US 18 to 24

• 57% of US 25 to 34

• 50% of US adults

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September 8-10


Privacy

• Public

• “Friends”

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US Supreme Court

• “Rapid changes in the dynamics ofcommunication and informationtransmission are evident not just in thetechnology itself but in what societyaccepts as proper behavior.” City ofOntario v. Quon, 560 U.S. ___ (2010), slipop. at 11

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Journal of General Internal MedicineSurvey

• 93.5% of Medical Students

• 79.4% of Resident Physicians

• 41.6% of Practicing Physicians

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September 8-10



• 15.5% of Practicing Physicians reportedhaving visited the profile of a patient orpatient’s family member

• 34.5% of Practicing Physicians havereceived friend requests from patients ortheir family members

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• “A majority did not think it ethicallyacceptable to interact with patientswithin OSNs for either social (68.3%) orpatient-care (68.0%) reasons. Almost halfof respondents (48.7%) were pessimisticabout the potential for OSNs to improvepatient–doctor communication, and amajority (79%) expressed concerns aboutmaintaining patient confidentiality.”

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JAMA Survey

• Medical school administrators askedabout unprofessional content postings bystudents – 60% aware of such

• Katherine C. Chretien, MD, S. RyanGeysen, MD, MA, Jean-Paul Chretien, MD,PhD, Terry Kind, MD, MPH, Online Postingof Unprofessional Content by MedicalStudents, JAMA Vol. 302, No. 12, 1309(2009)

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September 8-10


JAMA Survey

• 38% sexually suggestive

• Inappropriate photographs

• Requesting inappropriate friendships withpatients

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JAMA Survey

• Profanity (52%)

• Discriminatory language (40%)

• Depicted intoxication (40%)

• Violating patient confidentiality (13%)

• Critical of school

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Categories of Use in Cases

• Violation of law or ethics in itself

• Evidence of violation of other laws orethical rules

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September 8-10


Attorney Disciplined for Blog Posts

• Attorney Peshek's misconduct in Illinoisconsisted of publishing a blog withinformation related to her legal work . . .. The public blog contained confidentialinformation about her clients andderogatory comments about judges. Theblog had information sufficient toidentify those clients and judges usingpublic sources.

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ER Physician Disciplined for FacebookPost

• Emergency room physician posted “a fewof her clinical experiences in theHospital’s Emergency Department” onher Facebook Account.

• She “did not use patient names and hadno intention to reveal any confidentialpatient information.”

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ER Physician Disciplined for FacebookPost

• “However, the nature of one person’sinjury was such that the patient wasidentified by unauthorized third parties.”

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September 8-10


ER Nurses Post Patient Pictures onFacebook

• “William Wells arrived at the emergencyroom . . . mortally wounded.”

• “Instead of focusing on treating him . . .they snapped pictures of the dying manand posted them on Facebook.”

• “People may think they’re protected sothat what they post can only be seen by afriend or family member, but life hasproved otherwise.

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“Lying Down Game”

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AMA Policy

• No posting of identifiable patientinformation

• Guard your own privacy through settings

• Maintain appropriate boundaries, perhapsseparating personal and professionalcontent

• Watch each other’s backs

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September 8-10


How Do You Get It

• On your own

• Through others

• From the site

• From the member

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Facebook’s Response to Subpoenas

• Get it from the user, not Facebook

• Stored Communication Act, 18 U.S.C §§2702 and 2703

• Subpoenas must come from the federalcourt in the Northern District ofCalifornia or a California state court

• Subpoenas must be personally served

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Facebook’s Response to Subpoenas

• Subpoenas must not be “Overly Broad,Unduly Burdensome or Vague”

• Subpoenas must not seek privileged orproprietary information

• Facebook will not testify as custodian orexpert

• Facebook expects to be paid for its time


September 8-10


Stored Communications Act

• 18 U.S.C. §§ 2701-2712

• 1986 law

• Cover

– Electronic communication services

– Remote computer services

• Social media not contemplated – “ill-suited to address modern forms ofcommunication”

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Consider a Preservation Order

• Users may deactivate or delete accounts

• Deleted accounts may nevertheless berecoverable

• Service’s privacy policy may providedetails

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Obtaining from Licensee

• Ask about social media use and usernames in discovery

• Include information about blogs andTwitter

• Smart users will limit privacy

• Facebook lets users download their owninformation

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September 8-10


Romano v. Steelcase Inc.

• Defendant in a personal injury casemoved “for an Order granting saidDefendant access to Plaintiff's currentand historical Facebook and MySpacepages and accounts, including all deletedpages and related information”

• 30 Misc. 3d 426, 427, 907 N.Y.S.2d 650,651, 2010 N.Y. Slip Op. 20388, 2010 WL3703242 (N.Y. Sup. Ct. 2010)

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Muniz v. United Parcel Serv., Inc.

• “UPS contends that Jaffe's electronicpostings about the case will revealrelevant evidence of his time spent onthis case, his market rates, and his skill inhandling the instant litigation -- and thatthis information is necessary becauseJaffe failed to provide such evidence insupport of Plaintiff's fee request.”

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Muniz v. United Parcel Serv., Inc.

• “In an attempt to demonstrate that itsdiscovery demand would yield relevantinformation, UPS submitted somepostings from Jaffe's Facebook page, aswell as three postings from one of thelistservs at issue, that of the CaliforniaEmployment Lawyers Association(“CELA”).”

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September 8-10


Obtaining on Your Own

• Ethics rules/opinions for attorneys

– Available to public

– Available to members

– Available to friends

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Attorney Professional Responsibility

• May you advise a client to delete socialmedia that might be evidence?

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• Model Rule 3.4 – “A lawyer shall not . . .Unlawfully alter, destroy or conceal adocument or other material havingpotential evidentiary value [or counsel aclient to do so.]”

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September 8-10



• May you obtain publicly-available socialmedia?

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• What if the information is available onlyto “friends?”

– May attorney ask to “friend” licensee?

– May attorney ask another to do so?

– What if true purpose is not revealed?

– What if deception is used?

– Does it matter if the licensee is represented?

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Model Rule 8.4 (a)

• May not violate the Rules of ProfessionalConduct “through the acts of another”

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September 8-10


Model Rule 8.4 (c)

• May not “engage in conduct involvingdishonesty, fraud, deceit ormisrepresentation”

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Model Rule 4.1 (a)

• May not knowingly “make a falsestatement of material fact or law to athird person”

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Model Rule 4.2

• “In representing a client, a lawyer shallnot communicate about the subject ofthe representation with a person thelawyer knows to be represented byanother lawyer in the matter, unless thelawyer has the consent of the otherlawyer or is authorized to do so by law ora court order.”

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September 8-10


Model Rule 4.3

• “In dealing on behalf of a client with aperson who is not represented bycounsel, a lawyer shall not state or implythat the lawyer is disinterested. Whenthe lawyer knows or reasonably shouldknow that the unrepresented personmisunderstands the lawyer’s role in thematter, the lawyer shall make reasonableefforts to correct the misunderstanding.”

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• If a lawyer discovers he already knows a“friend,” may the lawyer use informationaccessible only to friends?

• If an investigator has already “friended” thelicensee and gathered information, may thelawyer use it?

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JAMES A. WILSON, ATTORNEY ATLAW

5322 Highgate Drive, Suite 243

Durham, North Carolina 27713

Telephone 919-361-4300

Facsimile 919-361-4305

E-mail [email protected]

www.jamesawilson.com

www.WilsonsReporter.com

LinkedIn to Facebook Social Networking.ppt · 2011-08-23 · LinkedIn to Facebook: Social Networking and Regulatory Practice September 8-10 Pittsburgh, Pennsylvania 17 Model Rule

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