Pew Research reports that more than 65 percent of all adults used social media every day in 2011 — up from 61 percent in 2010. This expansive use of social media has created new sources of evidence. So for lawyers to best assist their clients, they must better understand social media and how their clients share information on the Internet.
You don’t need to devote hours every day to posting tweets and commenting on Facebook. But to get a better understanding of how social media works, you should spend some amount of time creating a Facebook page, Twitter account, and LinkedIn connections and learn to communicate via text messaging as well as use whatever other web tools your clients use.
What you will learn from the ToS should inform about how much you might want to share on that site. As a general rule, do not include more on your social media home pages about yourself than you are comfortable including on your current résumé, on your own website or the bio page on your firm’s website.
In other words, you do not need to explain that you really like pizza or bagels or Maseratis, or other personal information that some people feel compelled to post. Nor do you need to get involved in political debate about issues of the day or candidates for office.
Keep in mind that you should not post Tweets — or send messages through those sites — that you would not want anyone other than the recipient to see. These messages are neither private nor protected, even though they appear to be and, worst of all, messages on the Internet are permanent.
The more you understand ToS, the better equipped you will be to do your job, because almost every business operating today has an Internet presence. So the more you understand the business operations of the Internet website you use, the better you will be able to help clients with their Internet business issues, whether in transactions or litigation.
As a matter of course, many businesses routinely review other companies’ ToS in their market, to get an idea what terms they should have on their own websites. While on the surface this makes sense, it may not really be a good business strategy. For instance, the most popular search engines are offered by Google, Microsoft Bing, AOL and Yahoo, but each brand has very different terms in their ToS. Why? Because each company has different business and ownership issues. A business should not rely exclusively on the ToS of a particular website as a model of what provisions they should include in their own ToS. Lawyers can help their clients understand the legal risks associated with their businesses and consider what terms should be included.
This may be a surprise for some, but every website you visit has access to your IP (Internet protocol) address, which is your unique location on the Internet. Other information is also available, depending on “cookies” (saved text files that are used when you revisit a site), and what other data you permit websites to know about you, including personal identifying information. Finding IP addresses are how copyright holders of music have been able to figure out, with the help of Internet service providers, who has downloaded their music.
What makes privacy policies more complicated is that privacy laws outside the U.S. are very different. The European Union adopted the 1995 Data Directive (soon to be updated) that allows citizens of member states to inspect any computer that has information about them, and allows the citizen to correct any information. Note that unlike in the U.S., even emails are private to the employee in the EU. Other countries like Canada, Japan and Australia have privacy laws that are similar to the EU. So if your client does business outside the U.S., you may need to understand the privacy laws of each country where it does business, to assist your clients with compliance and litigation. If your clients’ servers are in other countries, the privacy laws may affect data on those computers. Therefore you need to understand these issues to best assist your clients.
A significant amount of evidence is created from social media. Trial lawyers can benefit the more they know and understand how people communicate with social media tools. During discovery in most lawsuits it is critical that lawyers review social media sites for evidence. Also lawyers often find important evidence on clients’ websites, such as marketing representations about how products will perform, or sales estimates, or individuals misrepresenting their education or business experiences.
Given the importance of social media and dependence by businesses of the Internet, lawyers have to jump in and learn as much as possible about social media and other Internet-related evidence, to be better prepared to help clients, and understand what witnesses and jurors experience every day. •