Transcript The Emerging Data Security Law

Blogs, Wikis,
Blogosphere
And the Law
For Corporations
Nov 14, 2006
Rudy Guyon
Senior Corporate Counsel
Fujitsu America, Inc. Legal Dept.
[email protected]; 408 746 6545
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Some References
Wiki: Wikipedia on various technology topics.
Blogs: Dennis Kennedy: Debbie Weil; Jonathan Schwartz; A Blog Around the
Clock; Blawg Review; David Sifry’s Alerts; Law Dawg Blawg; Rudy
Guyon’s Weblog (Fujitsu internal); EFF Legal Guide for Bloggers;
Internet Forum; Samizdata.net; and others.
Articles: Robert Ambrogi, What RSS Can Do for Lawyers, Law Technology
News,August 5, 2005 ; Patrick Robben, Welcome to the Blogosphere,
Business Law Today, May/June 2006
Study: Nora Barnes, UMass/Dartmouth, “Behind the Scenes in the
Blogosphere, Advice from Established Bloggers” 2006
Presentations and PowerPoints: Raymond Hixson, Karen Dempsey, and
Daniel Appelman, “The Legal Minefield of Employee Blogging”; Mia
Garlick, “Creative Commons”; Rick Danis, “Content Syndication”; Bill
Goines on blogging law.
Company Policies: Sun, IBM, Plaxco, Fujitsu
Terms of Use: TPMCafe.com; TimeWarner, Fujitsu
And so on.
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Wikis
• RSS Technology
• Multiple users work on a common website;
add; subtract; modify
• Fast changes!
• Can control editing.
• Wiki companies are hot targets
– Jotspot bought by Google
• Wikis have a theme
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Wiki Editing History
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“Wikiality”
“[On Wikipedia] any user can change any
entry, and if enough other users agree with
them, it becomes true. ...
“Who is Britannica to tell me that George
Washington had slaves? If I want to say he
didn't, that's my right. And now, thanks to
Wikipedia, it's also a fact.”
Stephen Colbert, The Colbert Report (2006)
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RSS & RSS Feeds
• Really simple syndication
• The software technology used by web publishers to
create and distribute news and content
• The software that blogs, wikis, & newsreaders read
• Users can subscribe to content on a blog or wiki or
media website, and this content is distributed to and
accessible on your newsreader via “RSS Feed”.
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Homepages, Newsreaders &
Aggregators
• Technology for subscribing to, gathering
RSS feeds
• Search the blogosphere and media
websites and have specific RSS content
streamed to your newsreader
– Newsgator, MyYahoo, Bloglines, etc.
(subscribe to RSS feeds)
– Digg, Boing Boing, etc. (publish RSS feeds)
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RSS Code
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<?xml version="1.0"?> <rdf:RDF
xmlns:rdf="http://www.w3.org/1999/02/22-rdf-syntax-ns#"
xmlns="http://purl.org/rss/1.0/"> <channel
rdf:about="http://www.xml.com/xml/news.rss"> <title>XML.com</title>
<link>http://xml.com/pub</link> <description> XML.com features a rich
mix of information and services for the XML community. </description>
<image rdf:resource="http://xml.com/universal/images/xml_tiny.gif" />
<items> <rdf:Seq> <rdf:li
resource="http://xml.com/pub/2000/08/09/xslt/xslt.html" /> <rdf:li
resource="http://xml.com/pub/2000/08/09/rdfdb/index.html" /> </rdf:Seq>
</items> <textinput rdf:resource="http://search.xml.com" /> </channel>
<image rdf:about="http://xml.com/universal/images/xml_tiny.gif">
<title>XML.com</title> <link>http://www.xml.com</link>
<url>http://xml.com/universal/images/xml_tiny.gif</url> </image> <item
rdf:about="http://xml.com/pub/2000/08/09/xslt/xslt.html"> <title>Processing
Inclusions with XSLT</title>
<link>http://xml.com/pub/2000/08/09/xslt/xslt.html</link> <description>
Processing document inclusions with general XML tools can be problematic.
This article proposes a way of preserving inclusion information through
SAX-based processing. …
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RSS True Believers
“RSS is an exciting technology for delivering
information that you want, when and how you
want it. We have only begun to discover its
potential.”
Murley, Law Dawg Blawg
“If you are not yet using RSS, you are missing out
on the single best way to get news and updated
information via the Internet.…RSS enables
delivery of Web content directly to your desktop.”
Ambrogi, What RSS Can Do for Lawyers
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Blogs
• Uses RSS Technology
• New material always posted on top—user
friendly, easy to update blogsite
• Posts by blogger of topical material
• Usually links to information sources, other blogs
• Comments by readers
• Dialogue with blogger and audience, other blogs
• Continuously updating forum
• Focus on topics, or blogger personality, or both
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Blog Software
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Typepad
Blogspot
Moveable Type
MySpace
Blogger
FrontPage
Etc.
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Blogosphere
• Over 50 Million Blogs!
• Over 175,000 new ones per day! 2 per second!
• Technorati (July 2006):
• New Vocabulary
– “Like all Internet formats, weblogs, also known as
'blogs', have developed many terms which may baffle
newcomers.”
• http://www.samizdata.net/blog/glossary.html
• Three largest blogosphere languages
– Japanese (37%);
– English (31%)
– Chinese (15%).
• Technorati (March 2006)
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Acephalous
Agonist, The
AlphaPsy
BibliOdyssey
Brain Waves
BrainEthics
Cliopatria
Cognitive Daily
Conscious Entities
Corpus Callosum, The
Cosmic Variance
Crooks & Liars
Daily Kos
Developing Intelligence
Easily Distracted
Eteraz
Evolution List, The
Experimental Philosophy
Fragments of Consciousness
Frontal Cortex, The
Future Pundit
Gene Expression
Hot Cup of Joe
Huffington Post, The
TalkingPointsMemo
Blogs Blogs Blogs
• Politics
– Daily Kos
• Science
– Scienceblogs
• Legal
– Blawg Review
• Tech Gossip
– Valleywag
• And so on…
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Blog Search Engines
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Technorati
Google beta
Bloglines
Etc.
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Bloggers Have Personality
• About Jonathan Schwartz’s Weblog: “…Schwartz is
president and CEO of Sun Microsystems. An inveterate
blogger, Schwartz has led Sun's drive toward
transparency and openness. Jonathan is an outspoken
advocate for the network as a tool for economic, social
and political progress. “
• About Scobleizer: “Robert Scoble (born January 18,
1965) is an American blogger, technical evangelist, and
author. Scoble is best known for his popular blog,
Scobleizer, which came to prominence during his tenure
as a technical evangelist at Microsoft. ”
• From A Blog Around the Clock: “I am a Red-State
Serbian Jewish atheist liberal PhD student with Thesiswriting block and severe blogorrhea trying to understand
the world by making strange connections between
science, religion, brain, language and sex.…“
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Should Your Company Blog?
• “Blogging is not an optional endeavor.
Those that don’t will not survive”
Barnes, UMass/Dartmouth study “Behind the Scenes in
the Blogosphere: Advice from Established Bloggers”
• Does your demographic blog?
– If you build it, will they come?
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How a Corporation Might Use a Blog
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Provide Content
Draw Traffic
Get Ad Revenue
Build Linked Partner Network
PR about industry, product, service
Provide Support
Disseminate information / training/ knowledge
– Hot legal topics
– How to use the website, etc.
• Learn from customers, employees
• Forum for business or entertainment
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Internal Blogs
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Simplest Use/Least Legal Exposure
Intra-company
Forum for group discussion
Disseminate ideas, information
Perform Training
– Legal Blog?
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Desirable Company Policies
Relevant to Blogging are:
• Online Discourse Policy
• Website Terms and Conditions
• Internet and Telecom Usage policy
Employers should strive for consistent
implementation of their policies
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Online Discourse Policy/Blog Policy
Key terms for your Company’s policy:
• Employee’s Legal Responsibility for
Commentary.
• Speaking on your own behalf and not for
the company.
• Confidentiality Duties
• Do not let online discourse interfere with
your work.
• Violations may result in disciplinary action.
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Blog Policy: Include Blog Etiquette
• Provide Context, Be Thoughtful, Add Value
• Double Check Facts and Provide Sources
• Be Respectful: Write as if your boss,
mother, or child can read your commentary.
• Welcome “off-blog” feedback Correct your
mistakes.
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Website Terms of Use
Ownership of Content
Disclaimers of Warranties
Disclaimer for Links to Third Party Links
Company Rights to Transmitted Materials
Prohibited Uses.
Third Party Rights to Link, Use
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Internet & Telecom Use Policy
• Policy directed at employees about use of
Company website and telecom facilities
• Make sure policy covers blogging or update it
• Some Key Points:
– Company’s Ownership of Facilities
– No Disrupting or Misuse of Facilities
– No Harassment
– No Expectation of Privacy
– Company Monitoring (even for password areas)
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Content Rights
Your company puts a blog on the WWW:
• Ownership of or rights to publish content
– Granting rights to republish site content
• e.g. Creative Commons license
– Obtaining rights from content providers, users
who post
• Require blog registration (Clickwrap); or
• Post Terms of Use (Browsewrap)
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Creative Commons
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Licensing others to make use of your content
Do-it-yourself
Various choices (restrictive to unrestrictive)
“Some Rights Reserved”
Creativecommons.org
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Creative Commons License
Attribution-NonCommercial-ShareAlike 1.0
You are free:
to copy, distribute, display, and perform the work
to make derivative works
Under the following conditions:
Attribution. You must attribute the work in the manner specified by the author or licensor.
Noncommercial. You may not use this work for commercial purposes.
Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only
under a license identical to this one.
For any reuse or distribution, you must make clear to others the license terms of this work.
Any of these conditions can be waived if you get permission from the copyright holder.
Your fair use and other rights are in no way affected by the above.
This is a human-readable summary of the Legal Code (the full license).
Disclaimer
Learn how to distribute your work using this license
A new version of this license is available. You should use it for new works, and you may want to
relicense existing works under it. No works are automatically put under the new license, however.
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More on Copyrights
• Bloggers frequently rely on “fair use” of
copyrighted works
• Employers may be liable for copyright
infringement based on agency, contributory
or vicarious liability theories
• DMCA “Notice and Takedown” safe harbor
only protects ISPs
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Advertising Laws
• Promotional Advertising Content subject to
– FTC Act Section 5 preventing unfair or
misleading business practices
– State Unfair Competition Laws
– Truth in Advertising Laws
• Companies that sell Ads on Blogs should
– Develop Advertising Guidelines
– Restrict Ad content
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Libel and Defamation
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Defamatory posts
Trade Libel
Libelous Posts
Liability for third party content
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Privacy Torts
• False Light
• Private Facts
• Intrusion into Seclusion
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Bloggers who Harass
Employer duty to not allow harassment (from
employee blogging, too)
• Hostile “Work Environment”
– Blogs can be setting related to the workplace if part of
a pattern of harassment in the workplace. Blakey v.
Continental Airlines
• NJ Supreme Court, Harassment of first female pilot occurred
in part on Internet forum.
• Protected Categories Only (Many!)
• Employers who take prompt corrective action
– Have a defense against non-supervisor’s harassment
• Strict Liability for Supervisor Harassment
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Bloggers who Disclose
Trade Secrets, Confidential Info
• Trade secrets
– Value from being not generally known
– Reasonable steps must be taken to maintain secrecy
• Posting trade secrets can destroy secrecy
– Best to take immediate action to try and protect
secrecy
– Files may be cached on Internet forever
• Wrongly posting confidential information can
expose Company to liability
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Journalism and
Outing Anonymous Posters
Suppose a company finds its trade secrets on a blog, and
the blogger/journalist wants to keep sources secret.
• Some bloggers are journalists
• Some state laws protect privacy rights of journalists
• California has “reporter’s shield in its constitution
granting absolute protection to journalists that can only
be overcome by countervailing federal constitutional right
• Qualified privilege to keep private names of confidential
sources
• In “O’Grady vs Superior Court” (Recent Apple Case),
bloggers were found to be journalists and did not have to
reveal sources related to tortious misappropriation
– Criminal misappropriation different.
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At Will Employment
Employees who blog outside work on non-work
matters
• At Will Employees can be terminated for any reason.
– “Dozens of people have been fired for blogging.…In many
cases, there is no legal means of redress….” EFF
– “While your right to free speech is protected by the First
Amendment, this protection does not shield you from the
consequences of what you say…In states with "at will"
employment laws like California, employers can fire you
at any time, for any reason. And no state has laws that
specifically protect bloggers from discrimination….” EFF
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Employee Privacy Rights
• California Labor Code 96(k) and 98.6 prohibit
discharge or discrimination against an employee
for “lawful conduct during nonworking hours away
from the employer’s premises.
– Such laws have not been tested in a blogging context.
– No known successful wrongful termination suits by
employee terminated for private blogging
• Cannot terminate if the employee has a
reasonable expectation of privacy in their blogging.
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Protected Blogging
• Employees cannot be terminated for
blogging that constitutes protected
conduct
– Employee conduct with reasonable
expectation of privacy.
– Political activities
– Labor organizing
– Whistleblowing
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Whistleblowing
• Opposing unlawful activity
• Exercising a legal right
• Speech regarding terms and conditions of
employment
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Labor Organizing & Work Conditions
• Employer may not retaliate against
employees who engaged in concerted
activities for collective bargaining or
mutual aid and protection are protected
under National Labor Relations Act
• Employees can’t be fired for blogging
about work conditions, employment terms,
wages, etc.
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Work-Related Blogging
• Employers can enforce their policies against employees
who blog outside the workplace on work-related matters,
or whose blogging impacts the workplace
• Employers legally obliged to regulate employee conduct
re Trade Secrets & Harassment
• Employers can read employee public blogs
• Employer access to restricted blogs may violate Stored
Communications Act.
• Employer can monitor Company blogs so long as no
reasonable expectation of privacy
• Employees who blog on private matters using workplace
equipment and time are subject to employer policies
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Securities Law
• Public companies should not disclose
material non-public information on blogs
prior to general dissemination
• Fraudulent material statements &10b5
liability
• Forward Looking Statements” disclaimer
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Insure Risks?
• General liability policy may cover blogging
• Or multimedia policies are available
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The End.
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