My section of the presentation covered “Social Networks.” To illustrate the good and bad of the overshared generation, I led off with “G-Male,” a parody of what a virtual boyfriend constructed from all the information Google has collected about you might be like:

My part of the presentation covered some basic legal concepts that will only grow in significance as social networks continue to infuse every aspect of our lives, from our most private messages to the daily news headlines. These topics are:

1. Misappropriation of Name and Likeness Rights to control the use of one’s name and likeness become increasingly important as countless online community startups try to construct business models based on building social networks and monetizing against them. I discussed the 2007 case of Susan Chang v. Virgin Mobile USA, from the Northern District Texas (documents available at Justia.com). The Chang case is a good illustration of the difference between intellectual property rights (here, copyright that was waived through opting in to Creative Commons) and rights of publicity (here, the identifiable image of a little girl that was the subject of the picture used for Virgin Mobile advertisements without permission).

2. Impersonation Two fundamental schools of thought about Internet culture inevitably clash regarding impersonation. One school of thought holds that anonymity is sacred on the Internet, and that users should be able to construct a coherent (or even ephemeral) online identity. There are valid use cases for this, such as for victims of abuse or members of alternative communities that might otherwise be harassed. The other school of thought holds that online life is an extension of real life, and that it is important to verify each user’s identity to hold users accountable for their online actions.
I discussed Tony LaRussa’s case against Twitter (Good luck to you in the World Series, Tony) and the California Legislature’s new addition to the California Penal Code for malicious impersonation online, Penal Code Section 528.5.

3. Social Gaming and the Children’s Online Privacy Protection Act (COPPA)
It’s really, really important to know the laws about collecting user’s private information, especially in the case of children. As demonstrated by Playdom and Howard Mark’s May 2011 $3 million dollar settlement with the FTC. That’s a lot of Pony Stars.

4. Cyberbullying
Unfortunately, you can tell a lot about what people in a society are doing by looking at what they have outlawed. In July 2011, California amended Education Code 32261(a) to specify that acts of bullying through social networks qualify as bullying and can be disciplined in the schools. Which is a good opportunity to remind you that October is Bullying Prevention Month.

5. Computer Fraud and Abuse Act (CFAA)
This is such a broad law that it has recently been used in a variety of unexpected ways. I discussed the case of Pulte Homes v. Laborers’ International Union, in which the 6th Circuit upheld the employer’s claim that a union’s campaign to bombard and disable the employer’s email and telephone servers was an actionable violation of the Computer Fraud and Abuse Act.

6. Data Scraping and the Future of Online Reputation
There is an explosion of new data scraping sites vying to collect all your online information and push it to the top of search results for your name. I tested a few of them before the presentation to see how accommodating they were with requests to remove data. This promises to be a cutting-edge area for legal development, as the first two audience questions were about online reputation repair companies such as Reputation Defender and what, if anything, can be done about negative reviews on ratings sites.

Slides of the presentation below:

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We talk a lot about changing norms in copyright and Internet use. Here, we had a very spirited discussion of Youtube’s new “Copyright School.” Also, the Internet rights discussion has now entered the lawmaking process with the Kerry-McCain draft Commercial Privacy Bill of Rights Act currently circulating on Capital Hill.

I had previously asked on Quora What rights should users of a social networking site have? Why? It was for this panel. I have asked for a link to the live stream of the panel where anyone can give feedback. The "mechanism" I refer to below is at a website http://snubillofrights.com/.

The panel organizer asked for a few paragraphs about the perspective each panelist would bring to the panel. Here is what I wrote:

"My perspective is that it is the responsibility of users to bootstrap and start up their own mechanism for feedback to social sites as good social networking citizens. Much de facto policy is now made by the free market. I see a need for users to organize and speak somehow as a quantifiable a group to give feedback to Facebook, Google and other well-intentioned social networking sites when the sites do things on erroneous premises of what users want.

There is no good way currently of collecting hard, empirical,
quantitative data about the preferences of a large number of social
network users. There is a need to have user input into the formation of social norms, because courts interpreting values such as "expectations of privacy" often look to social network sites policies and practices.

In May and June 2010, Jack Lerner and I discussed our concern that Facebook was modifying privacy policies in increments and making it technically difficult from a User Interface perspective for a user to revert default privacy settings they didn't agree with. We wrote a "Bill of Rights" around the same time as others from the Electronic Freedom Foundation, PC World, and ACLU had the same idea to publish Bills of Rights. Jon Pincus at the Computers, Freedom and Privacy conference in June 2010 had the idea to bring these Bills of Rights together into general principles.

The Bill of Rights is a starting point for norms. There are many
specific fine tunings and concrete applications of the norms. But this focuses on trying to achieve consensus about what users are entitled to expect and want, in the absence of website drafted policies and private Terms of Service Agreements."

By the way, I think Quora does an excellent job with these rights and norms. Most importantly they have tinkered with privacy settings and policies very little (if at all) from the policies set forth from the beginning.

Everyone's thoughts (and votes on http://snubillofrights.com/) are of course appreciated.

Post on Quora

(I’m a little in love with Quora lately. Like my Powerpoint theme?)

Doing a rapid-fire survey of telecommunications regulation made a few themes pop out. First, it never seemed to bothered regulators to apply old statutes to new technologies. If the FCC says television is included in “radio,” then it is. For 60 years, the Telecommunications Act of 1934 Act governed many technologies not yet invented. Just as the Sony v. Betamax decision established important aspects of Fair Use with technology that nobody uses anymore.

Second, it’s amazing how many normative, American values are embedded in the whole regulatory scheme. There is such an emphasis on the free market, the two-party political system and at the same time norms of decency and obscenity.

Third, the students asked some great questions and made terrific comments. On the subject of COICA, one student asked, how does the U.S. Customs gain jurisdiction over foreign-hosted and registered websites to seize domain names under COICA? (At the “border crossing,” at least in theory.)

These are the right questions. If you want to see the questions that intrigue me lately, here they are.

Here’s our first episode:

Episodes 1 and 2 recaps are here and here.

When you do live television, you really appreciate how hard it is to make all the technical and content elements come together at once. It happens all thanks to the awesome and amazing Efren Toscano, the man behind TechZulu. We tend to give pretty heavy coverage to Facebook and Google (because you could have a weekly one-hour show on their legal issues alone), whatever scandal TechCrunch and Michael Arrington have stirred up that week, and favor local LA startups like Namesake and Demand Media, because that is what we know. We also have some comic relief towards the end of the show.

Hope you like it.

While I was at the Computers, Freedom and Privacy conference in San Jose, California, this week, Peter B. Collins asked me to talk on his Internet radio program about the Social Network User’s Bill of Rights we were hammering out at the conference.

To listen to my guest spot on the Peter B. Collins radio show, click below.

***Peter B. Collins Show Episode 142***

Peter asked great, insightful questions from outside the social media bubble.

1. What are reasonable expectations of privacy for Google search queries?

2. Are Yelp‘s review ranking algorithms a breach of an implied agreement with businesses?

3. Is Facebook developing a cottage industry in providing user data at $500 per subpoena?

4. Where are the courts on compelled disclosure of IP addresses?

5. Is Facebook heading for a tragedy of the commons when used for self-promotion?

6. Have social media policies eroded traditional constitutional protections in executing search warrants?

Peter’s toughest questions were about the intersection of constitutional law and social media Terms of Service, particularly Fourth Amendment issues.

Peter also asked for a recap of the seven principles in “We, the Users: Facebook User’s Bill of Rights” I wrote with Professor Jack Lerner of USC Law School for the San Francisco Chronicle.

Thanks, Peter!

Beautiful Pixel Art from the ACLU of Northern California’s dotrights.org project

I mentioned, and would like to know more about, Johanna Blakely’s “Ready to Share” project at USC Annenberg.

Lately, I’ve been surfing the wave of Schadenfreude at its recent fall from grace. I even co-wrote an op-ed for the San Francisco Chronicle that took some major digs at it.

However, I won’t be quitting. Something happened over the weekend that reminded me of the positive power of Facebook. A friend died. His name was David Lee.

Here is David, laughing and smiling just before he left for Costa Rica:

David Memorial from VidFu on Vimeo.

David was one of the best guys I have ever met. The video is from a business he was supposed to launch right after he came back from Costa Rica. He died in a car crash on that vacation.

It’s very much in character that Dave made this video. He told me, “There are a lot of people that talk about doing things, but I’m someone who does them.”

He was going to launch that business on time no matter what. I had told him it might be fun to get some comedy actress-writers I knew to be in the videos. But the actress-writers wanted to sit down and chat about it over coffee first. Their coffee date day was the day of the shoot. So he decided to star in it himself.

In business, David personified Guy Kawasaki’s principle of “Be a mensch.” His inner haggler sometimes battled with his innate generosity, but the generosity won out. Every long afternoon and late night we worked in K-town coffee shops, he picked up the check. When it was dark, he insisted on walking me to my car.

One night we had a heart-to-heart about why Koreans can be so dramatic. It’s like the Armenians, he said. Koreans endured a lot of suffering in their history.

I learned of David’s death from a Facebook event invitation. At first I mistook “Farewell to David Lee” for a going-away party. It dawned on me what might have happened. We were sending him off in farewell at the beach.

Like all of Dave’s friends, the friend who invited me was warm and outgoing. We had connected pretty quickly on Facebook.

When Dave’s friends started posting pictures and stories on his Facebook wall, I had some context to understand how loved he was. The range of emotions from his connections was comforting too. Everyone was dealing in their own way. It helped make it more real, going through it in real time, and not alone.

And this was possible because David and his friends had shared so much already. This is a case where in the moment you don’t care if the pictures are private or public. The point is to remember and share our life with David.

Now I get the half of the argument that is defending Facebook. If you post something you probably want to share it at some level. Even in the years I posted under an alias on an obscure Web community, I did.

As an Internet and media lawyer, I still think the Facebook privacy scam is evil. I think it sets a terrible example for business ethics. I still advocate for people to consider alternatives like Twitter, Flickr and Evite.

But as a user, I was really glad for Facebook this week. I’ll protest the privacy changes by abstaining on June 6, but I won’t quit.

If I had, I would have missed out on a little of David. I had too little time with him as it is.

To help such online journalists, I participated in a Legal Issues Panel on Episode 7 of WJChat through TweetChat with some of the legal leaders in new media journalism. The panel was assembled by Robert Hernandez (@webjournalist), who teaches a course in Online Journalism at USC’s Annenberg School.

My fellow panelists were Kurt Opsahl of the Electronic Frontier Foundation (@EFF), David Ardia and Kimberly Isbell of Harvard’s Citizen Media Law Project (@CitMediaLaw) at the Berkman Center for Internet & Society, and Jack Lerner (@JackLerner) of USC’s Intellectual Property and Technology Law Clinic.

Here is the transcript of WJChat Episode 7. A more coherent digest of the panel discussion is here.

If the formatting looks wonky, that’s because it is. My Columbia Law Review editors would have had a minor heart attack back in the day where we debated such fine points as whether to end possessive plurals with an ” s’ ” or an ” s’s. ” (For grammar geeks, it was decided that official Columbia Law Review style that year was to use the full ” s’s ” because the then-Editor-in-Chief thought the ” s’s ” conveyed plural better than a “lonely single apostrophe hanging out by itself.”)

As a matter of pure Blue Book style, I agree. But I don’t get a credit for my Note on the Columbia Law Review website, since I signed my copyright away. You can read it if you can afford a Westlaw or Lexis subscription.

Perhaps one day we’ll follow @BlueBook on Twitter. Properly, it would be @AUniformSystemofCitation, but that’s over the character length. In today’s Twitterverse, we wouldn’t use an extra character on subtleties such as an extra “s” or whether two spaces follow a period. Life is short, right? Maybe it’s not pretty, but we’d claim attribution for what we write.

That’s a fair trade-off, I think.

But back to the show.

The panel discussed ethical, legal and practical problems of online news gathering and reporting. We focused on issues unique to web journalism – shield laws, web commenting, quotations, expectations of privacy, Creative Commons licenses, retractions, and DMCA agents. At times, there was a division between normative law and empirical law — that is, the split in what we believe doctrines such as the Fair Use defense in copyright may or should allow, and practical rules of thumb easy enough for your average Joe or Jill citizen journalist to stay out of trouble.

Here are some useful resources for online journalists that came out of the discussion:

EFF’s Legal Guide for Bloggers
The Online Media Legal Network
PACER.gov and RecaptheLaw for federal cases
(To this, I add FindaCase.com.)
flickr.com for Creative Commons-licensed photos
archive.org for web history
http://www.copyright.gov/onlinesp/agent.pdf to register a DMCA agent
EFF’s guide to Section 230 Protection
EFF’s Bloggers as Journalists

My final tip? Be true to yourself, be accurate, and check your sources.