Twitter is resisting an attempt by prosecutors to gain access to the message history of a writer and activist who was arrested during Occupy Wall Street protests last fall, Boston.com reports. 

The micro-blogging service filed court papers Monday asking a judge to quash a subpoena in which the Manhattan district attorney had ordered it to produce months-worth of old tweets, now deleted, that had been posted by Malcolm Harris, who was among 700 people arrested on the Brooklyn Bridge during a march on Oct. 1.

Prosecutors argued that these tweets might show whether Harris was aware that police had ordered demonstrators not to march across the bridge.  Harris unsuccessfully tried to fight the subpoena on his own. A New York judge ruled that Harris lacked standing to fight the subpoena because he did own the tweets, Twitter did.

Judge Matthew Sciarrino wrote in his April decision that once Harris posted his messages they became the property of Twitter and that any constitutional protection he had over their disclosure disappeared:

“While the Fourth Amendment provides protection for our physical homes, we do not have a physical ‘home’ on the Internet,” Sciarrino wrote. He also reasoned that Twitter was free to redistribute its customers’ tweets “to anyone, any way and for any reason it chooses.”

Twitter contends the judge misunderstood how its service works, claiming that Twitter users do not relinquish ownership of their messages or photos by posting them on the service. Twitter also argued that the federal Stored Communications Act provides Twitter users with standing to challenge demands for their account records. A decision will be forthcoming.

This is not the first time prosecutors have sought Twitter account information from “occupy” activities.  In January, a Massachusetts prosecutor subpoenaed the Twitter records of an Occupy Boston activist, as well as records linked to two certain “hashtags” (#BostonPD).  A CNN correspondent interviewed me to comment on the subpoena – and published the following:

Subpoenaing Twitter records is becoming more common, according to lawyer Ethan Wall, of the Richman Greer law firm in Miami. Wall, who specializes in intellectual property litigation, said the practice could have “a chilling effect on free speech.”

“We are in this information-accessible age where we can post anything and everything from anywhere on any device,” Wall said. “Because it’s so easy I don’t think that people put the thought into how this might affect them personally, professionally or legally.”

This is just one example of how the line between privacy and accessibility is blurring in the age of Internet communication. Stay tuned, as I will survey this issue on the blog over the coming weeks. 

A group of consumers who unsuccessfully sued Facebook for using their names and photos in ads will not have to pay the social networking service’s legal bills, according to Media Post.

U.S. District Court Judge Richard Seeborg rejected Facebook’s attempt to recoup $700,000 in attorneys’ fees following its successful dismissal of a lawsuit about whether its Friend Finder featured violated California’s publicity law. That law says that people have the right to control the commercial use of their names and images and provides for damages of $750 per violation. The lawsuit alleged that Facebook’s Friend Finder tool unlawfully used their names and photos in ads without their consent.

Seeborg wrote that even though he dismissed the potential class-action lawsuit, he had not decided whether Facebook violated the California law. Instead, he tossed the case because the consumers could not show that they had the right to bring a case in federal court. Therefore, he said, Facebook did not prevail in a way that would entitle it to recover its legal bills.

A more detailed analysis of the Court decision to dismiss the Friend Finder lawsuit is detailed in my August 2011 post which can be found here.  While Facebook was unsuccessful in recouping their attorneys fees following dismissal of this suit, the overall resolution of this lawsuit is a “victory” for the social media site in the sense that it may deter future lawsuits over its Friend Finder feature under California’s publicity law (and possibly similar laws in other states). 

Earlier this week, I summarized recent federal district court decisions addressing whether social media accounts can be considered protectable trade secrets.  In each of these cases, a former employees retained the login credentials for their employers’ business social media accounts, refused to turn over the credentials, and used the information and friends list in connection with their new employment and to the detriment of their former employer.  Each court determined that the plaintiffs alleged sufficient facts to state a claim that their social media accounts were trade secrets.

While these decisions illustrate a potential remedy for the theft of social media information, prevention is much more efficient (and less costly) method of protecting social media information. Careful planning to protect a company’s social media presence and its business connections can save time and money in litigating against a former employee’s theft of social media information and credentials. In the article Are employer social networking accounts protectable trade secrets?, Kara Maciel and Matthew Sorensen provide the following suggestions for protecting this valuable information:

• Employers should ensure that they maintain a log of their social media account login credentials and that the log is appropriately updated.

• Require employees who establish and maintain such accounts on behalf of the company to enter agreements that provide that the accounts and their login credentials are the sole property of the company.

• Departing employees should be interviewed in connection with their exit to ensure that all company social media login credentials to which they had access have been returned.

Maciel and Sorensen also explain that in the event that an employee takes the login credentials for the employer’s social media accounts when he or she leaves the company, it is essential for the employer to take prompt action to recover the information as delay can result in the loss of legal protections for the accounts and any connections that they hold.

An ounce of prevention is truly worth the effort and expense of a litigation cure. Employers should consider including a provision within their existing social media policies or employment documents to prevent the unlawful use of their social media information from their current and former employees. 

Social media has become an increasingly important tool for businesses to market their products and services. As the use of social media in business continues to grow, companies will face new challenges with respect to the protection of their confidential information and business goodwill. One of those potential challenges is protecting valuable social media information as trade secrets.

Consider this scenario: An employee creates or manages a social media sites for their employer. The employee is privy to the user name and password credentials in order to access and operates the site on behalf of the employer to share information, interact with users, and obtain new “friends” for the company. The employer and employee gain valuable competitive information through the site’s unique list of friends, along with their personal information and their preferences.  Following a resignation or termination, the former employee retains the login credentials for their employers’ business social media accounts, refuses to turn over the credentials, and uses the information and friends list in connection with their new employment.  Would the employer have the ability to protect their social media information as a trade secret?

In the article Are employer social networking accounts protectable trade secrets?, Kara Maciel and Matthew Sorensen analyze several recent federal district court decisions addressing whether social media accounts can be considered protectable trade secrets. In each of the reported decisions, the court determined that the plaintiffs alleged sufficient facts to state a claim that their social media accounts were trade secrets. Factors the courts considered in reaching these decisions included:

• The significant negative consequences on the employer’s ability to effectively compete and market their products and services.

• The list of “friends” and other information could only be access through password protection.

• The “friend” connections for social media pages were more than just lists of potential customers, they also provided personal information about the “friends” and their preferences.

• The lists of “friends” could not be duplicated without a substantial amount of effort and expense.

• In one instance, the former employee had entered an agreement in which she had agreed that any work she created or developed during her employment would be the property of the company.

Maciel and Sorensen note that the courts did not find that the plaintiffs had established that their social media accounts were trade secrets, but rather held that they had alleged sufficient facts to state a claim that those accounts were trade secrets. The question of whether the employers will be able to prove the facts necessary to prevail on their claims was left open for determination at an evidentiary hearing or trial.

Trade secrets are one of many emerging areas where social media is affecting the law in unique ways. Unlike traditional websites, a social media site’s list of “friends,” followers, or connections and their corresponding personal information arms employers, companies, and social media users with unique access to valuable customer information.  On Thursday, I will share the authors’ advice on how employers and other social media users can protect their social media information and hopefully avoid the situation described above in the future. 

Reporters who tweet from the courtroom during trial are a growing trend, however, some litigants object on the grounds that such practice distracts from the court proceedings. Most recently, in the high-profile trial of the man accused of killing the family of singer/actress Jennifer Hudson, the court has barred reporters from tweeting or posting messages to Facebook from inside the courtroom, reports the Daily Business Review. According to a court spokesman, the judge “didn’t want constant typing on cell phones to distract jurors and other courtroom participants.”  Yet, reporters who are restricted from tweeting during trial consider such prohibition an impingement on their First Amendment rights.

The Reporters Committee for Freedom of the Press reported last year that that there are “no set standard regarding tweeting from courtrooms and the rules tend to vary from state to state, and at times from trial to trial.” In the trial of Dr. Conrad Murray concerning the death of Michael Jackson, for example, tweeting was permitted and one local news station sent out nearly 1,900 tweets to about 3,000 followers. The report notes that in a tax fraud trial in the courtroom of U.S. District Court Judge Mark Bennett of Iowa, Bennett allowed a reporter to tweet about the proceedings but asked the reporter to sit in the back of the courtroom so that her typing would not be distracting.

In a landmark ruling, a U.K. judge has paved the way for high court claims to be served via Facebook for the first time in the U.K., the Daily Business Review reports.

Lawyers for broker TFS Derivatives may use the social networking site to track down its former employee Fabio de Biase as part of a suit brought against the company by investment manager AKO Capital. Attempts to serve the claim on De Biase at his last known address have so far been unsuccessful, prompting TFS to appeal during pretrial discussions for permission to contact the disgraced broker via Facebook

This is not the first time social media has been used to serve pleadings in smaller matters within the U.K. Last May, a U.K. lawyer successfully used Facebook to serve a hard-to-find debtor in a County Court trial. The high court previously allowed an injunction to be served via Twitter. The TFS/AKO case, however, appears to be the first in which Facebook has been used to serve a high court claim.

De Biase has been granted 14 days to respond to the claim, a significant extension from the two-day deadline that is typical in commercial cases, to allow time to check his Facebook account.

Serving pleadings via social media sites is increasingly common in Australia and New Zealand. I have presented on cases from Australian courts that both permit and disallow service through social media sites.  As serving pleadings through social media becomes more common abroad, I would not be surprised to see more litigants attempting to serve pleadings through these sites in the United States.

After Yahoo sued Facebook in March for patent infringement, the social networking site fired back earlier this month with a countersuit claiming that Yahoo is infringing on ten of Facebook’s patents, the Daily Business Review reports.

Facebook alleges that Yahoo is violating patents covering services such as its homepage, content optimization, relevance engine, photo-sharing service and advertisements displayed throughout the site. Facebook’s own engineers allegedly invented three of these patents, and another was co-invented by Mark Zuckerberg himself.

This is not the first time Facebook has battled over patents. In 2008, Leader Technologies Inc. sued Facebook, alleging the company infringes a patent on its data management tool. The case went to trial in Delaware district court in 2010, the first time Facebook had ever faced a jury. The jury found Facebook had infringed the patent, but it also invalidated the patent because Leader had sold the technology before seeking patent protection. Leader appealed the ruling to the U.S. Court of Appeals for the Federal Circuit, which heard oral arguments in March. The court has not yet issued an opinion.

Facebook’s countersuit can be found here.

Maryland lawmakers are in the process of passing legislation prohibiting employers from asking current and prospective employees for their user names and passwords to social media sites such as Facebook and Twitter, according to The Baltimore Sun.

Employers across the country are frequently requesting access to potential hires’ social media pages to weed out unwanted candidates. Applicants and Facebook alike have criticized the practice of employers viewing employees’ personal accounts as running afoul with their privacy rights. The Bill would prohibit an employer from requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through a “specified electronic communications devices,” and further prohibit an employer threatening to take specified disciplinary actions for an employee’s refusal to disclose specified password and related information.

Maryland lawmakers began drafting the bill after the American Civil Liberties Union (ACLU) raised concerns about the Department of Public Safety and Correctional Services demanding the personal social media password of corrections officer Robert Collins. Collins was asked for his Facebook password in a re-certification interview with the state agency.

Maryland would be the first state in the nation to set such a restriction into law. A copy of the legislation can be found here. 

Legal Blog Watch reports that companies like Boloco, a Boston burrito restaurant, are using their own social media followers and community to try to solve crime s such as the theft of a safe from one of their stores. According to its article featured in the Daily Business Review, Boloco posted the following to its Facebook page in late January:

‎$1000 cash reward for information that leads to apprehension of these 3 individuals who broke in and robbed our Boloco Berklee location last night less than 30 minutes after our team locked the doors. We added music to the video (because that’s what we do), but it was haunting even without it.

We debated about whether to share this or not – traditionally this isn’t something that is “shared”… but it’s 2012 … and we think everyone needs to see what is happening out there, and work together to reduce and one day eliminate evil people like these three.

The post was accompanied by this video.  A day later, Boloco updated its Facebook page to report that it had received a “juicy” tip that might result in a $1000 cash winner provided it led to an arrest.

Private companies are following in the footsteps of law enforcement and insurance companies who already monitor social media sites for information and evidence concerning crimes and false claims.  In December, I reported on how insurers and police are using information from Facebook and Twitter to nail policyholders for filing inflated or fraudulent claims. As more businesses begin to understand the power of social media, I believe the scenario described above will become more common. Business should consult with their in-house attorneys or experienced counsel on how their “self-help” measures might effect or interfere the outcome of any criminal investigation or civil liability. 

Earlier this year, the JAPCA Ethics Alert Blog reported on San Diego Bar Opinion 2011-2 (May 24, 2011) addressing a hypothetical involving a lawyer who represents former employees in an employment lawsuit and sends “friend” requests on social media websites to higher level employees of the opposing party/employer identified by the client as being disgruntled. Here’s a summary of the JAPCA Ethics Alert and San Diego Bar Opinion:

• An attorney representing a former employee against his former company in a wrongful discharge action sends a “friend” request to two high-ranking employees with the client’s former company whom the client had identified as being dissatisfied with the employer and therefore likely to make disparaging comments on their social media pages.  The attorney intended to use information obtained from the social media websites to advance his client’s interests in the litigation.  The request provided the name of the attorney but did not reveal the reason for the request.  The opinion focused on whether the friend requests violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct.
•  Even though the friend requests makes no reference to anything other than the sender’s name, the request was found to relate to the “subject matter of the representation” since the communication was motivated by a search for information about the subject matter of the representation.  The opinion rejected the argument that sending a friend request to a represented party was no different from accessing an opposing party’s public website since the only reason for the friend request is to get past the restricted access on the social media page in order to gather information from the represented employee.
• The friend request violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct.  According to the opinion, a lawyer seeking to obtain information from a represented party on restricted social media websites must either: (1) obtain the consent of the represented party’s attorney and fully disclose his or her affiliation and the purpose of the friend request; or (2) seek the information through discovery.

The JAPCA Ethics Alert notes that the California Rule in question is the equivalent of Florida Bar Rule is 4-4.2. While other state’s Bar Ethics Opinions are not binding and are for prepared for guidance only, attorneys should be mindful of how a similar situation would be analyzed under the rules of their local jurisdiction.  You can read more posts from the JAPCA Ethics Alert here.