Kevin Werbach opens the panel –
bringing business and legal thinking into the discussion


Densie Howell (This Week in Law) –, @dhowell
Gabe Ramsey (Orrick Herrington & Sutcliffe)
Alex MacGillvray (Twitter General Counsel) @Macgill
Kerry Krzynowek (Deloitte)

Social Media and the workplace
Not about technology, about communication, regardless of geography
Ubiquitous whether or not companies welcome it
One side – company/org, Other side – employees
Today in a different place, where is it?

Kerry –
Getting there, but not wholly comfortable
Email and Social comm will happen and nothing you can do about it
most of the policies already work
Some diff – as an org D had to change policies a little bit
informality and immediacy of social comm – blogging and responding you sometimes dont get a second opinion and more informal – misspellings, smileys, – doesnt jive well for an audit
use better judgement with informality
distinguishing personal comm from work comm – policies and training to address those sort of things
UGC – while D can control their own people, there is UGC they cant control,
these are the main new aspects to worry about – and they dont have them all solved yet

MacGillvray –
Larry Page’s policy on SoMe is “dont be dumb”
a lot to put on employees
all have views and things they like to do – way to see what everyone at twitter is tweeting
something different and changed in terms of openness
doesnt think its historic or that new
used to be a time where we would know people who provided services and we talked abotu things that were not about work – Butcher example: they provided meat but also could talk about their family
companies need to work with employees to trust and help them figure out “dont be dumb”

DHowell –
125 employees covering that /team, 60k following it

When email was integrated into work similar questions raised
employees act accordingly, have set expectations
new tech like twitter may not be fully congealed yet

What employees do with SoMe – and what company needs to be thinking about around that
What is your favorite flavor of policy? What kind of comm should it cover? What kind of training?

Ramsey –
SImple Better, focus on most dangerous types of substantive issues
disparaging other people, privacy, remind them they are speaking for the org, have a ? go to a supervisor

how do you make sure these policies dont sit in a musty binder?

Do it through training
Hopefully SoMe training more enjoyable than other types, but you have to institute one

Not something that is SoMe specific
when he goes to conferences, things recorded, on the web,
interactions recorded and will be posted on the web
training not about medium – about what the things you are trying to do and how to achieve those goals

DHowell –
have we reached a point where “we are reps of company at all times” or a distinction b/w personal and work

has friend w/ public twitter account and a private one
other people only use it privately
some only use it in a biz context
people trying all sorts of things
keep church and state sep
people still experimenting

Ramsey –
from employer perspective, not just implications of emp using tech, so much more info avail to the employer in the hiring context – you almost dont want to know
volume out there increases risk

a lot can be gleaned from the context of using a tool, but is it good idea to deal with it head on, but is it worth it to have them state whether or not they are speaking for the company

Ramsey –
gotta be an organic process
has to be contours that can be discussed on ongoing basis
needs to be a balance
trust is important
cultural issue – balance is achievable

few years ago when she first started blogging you would see companies ask employees who blog to put disclaimer (my views are my own) so you see legal creeping in

D asks that people make it clear if something is personal vs professional
asks that employees dont use D address for SoMe accounts that arent work
do have a D feed – use for recruiting,
D Sponsored SoMe blogs, etc. – need to make it clear what they are sponsoring or not

Question – Confidentiality in a common sense meaning, does it behoove companies to stripsearch attendees for cell phones and netbooks – does being in a conference when the word CONFIDENTIAL is on a deck slide infront of 1000 people is Confidentiality as a basic principle still in play

Ramsey –
Doesnt change confidentiality from a legal perspective – 200 years of case law means new tech shouldnt change that

Kerry –
SImilar policies for SoMe to normal communication on email or in an elevator – smart policies go across all mediums

Question –
Is there a diff b/w a product company or service company – dont talk about clients on a train or plane? IS there a diff in rules?

Kerry –
In application they are. As a lawyer you dont have convos on train or elevator b/c of Attorney/Client privilege – might violate that. In a services context those rules probably come up more often in a product setting.

people still break rules
diff b/w products and services
SoMe gives you the ability to have deeper engagement with your customer
COmcastCares example – give you an allegiance b/w you and customer you never had before
DOwnside but huge upside

Question –
Mostly talking about employer/employee relationship but what is the SoMe companies responsibiltiy to the users and all the data they are collecting, data usage, civil liberties, etc.

Good law for platform providers
lets them take principled stands for their users
providers not liable for defamation on the platform
a lot of providers will remove on the mere allegation – dont stick up for you
Free might limit providers sticking up for you
Newer comm mediums dont have a lot of private data
twitter all about the public
Service providers dont always meet the standards

230 costs him a lot to spend time with lawyers who dont understand it
Twitter sued 3 times by people who had no business suing them
all dismissed w/ no consideration from Twitter
becomes a tax on the service provider that needent be there
educate attorneys on the law important
DMCA regarding notice of takedown is a well-est piece of law and routinely misunderstood

for all its flaws DMCA has some certainty
process gets applied to all kinds of issues
notice and takedown of copyright apply across the board
keeps lawsuits down

Wendy –
See a range of uses for copyright and people try to take content down by trying to fit into DMCA form
how much does it cost to respond even if its “no you have absolutely no claim”
How much does it cost to bat away a frivolous complaint

sometimes cheaper to do it than fight it for the platform provider

Question – Twitter deletes its index over time, what is their obligation to humanity/society to maintain that history? Unless searchign in realtime you cant get those feeds

is it a feature or a bug?
The fact their search doesnt work is a bug
its where they are
MS just rolled out twitter search on their site
indexing is hard and maintaingn the data is harder
MS is doing indexing of tweets
hoping they will be able to create a long term index
Question is, something important and generalizable across service providers – important conversations are happening on your service, do you have some way of preserving the historical record? Twitter thinks they should , and are working on it.
ALl of the conversations are there – havent been deleted by the individual user, but they dont have a great means of searching beyond 14 days – working to increase that window or have another way to search thru that archive
Twitter tries to be open wiht the index and let others build on it – issue of it being hard to connect wiht historical tweets might be done by twitter or partner or internet archive

Question – if govt wanted to search for something on subpoena?

MacGillvray – we cant do it

DHowell – discovery is difficult on twitter – is there something about realtime that is different than what we are used to?

services that take the view that sometimes you can write somethign and it will disappear – not the case, providers not being transparent b/c it doesnt happen
if you look at Deloitte, and an attorney was looking to sue them, even that attorney would be reading tweets and saving them even if Twitter was deleting over time

Question – twitter model great for unregulated industries, in regulated industries, any SoMe statements could open the employee up to liability – what are the benefits vs the risks for high ranking members of a company to be engaging

been in legal departments where everything they say is a risk and lets ducttape the execs faces 🙂
days where not launchin products means less risk
engage in risk all the time in reality – not terribly new, something they have needed to deal with since they were regulated
regulation kicks lawyers into ducttape mode

EBays reaction to tweeting its investor calls – legal jumped in
disclaimers in 140 char chunks

Ramsey – dont be done, slightly diff than employees but handled in the same way

Question – SoMe and customer care – call center disclaimers, struck by how interleaving of call center conversations that get posted on twitter – are there any themes emerging for potential liability

hasnt been a tremendous worry about that
some users engaging with other users
both users understand the convo is public
people use those conversations the same way we use them in forums

Questions – cost/benefit around communication. Is all of this much ado abotu nothing? Cant think of one major case in SoMe where someone was reporting to rep a public company that blew up into a lawsuit? Students embarrasing themselves w/ SoMe and not getting a job but is there a big deal here?

Cisco blogger who was anonymous and then became un-anonymous, people trying to speak freely and then cloak their identity

Pattern of creating public and private account? is this outdated? employer asked her to seperate her accounts and refused – is this still a big deal

Kerry – dont think its a policy but its good practice

DHowell – individuals social media presence is what makes them a valued asset to a company – raises good question of individuals IP in a corp environment – are companies looking at this differently
people in the room have probably signed agreements where they give up their IP for a job – are these requirements outdated?

Ramsey – that structure will always be there in some way
SoMe and informational property – brands developing around individuals as they move around, their asset not the companies – there is value in it and how much control the individual has

DHowell – will company expect you using company equip that anything you do on that is corp property in the work for hire doctrine
is there a blurry crossover

one thing we can take lessons from in terms of open source
one protection you can build into relationship is to release it into open source with company’s permission makes it portable from job to job
you can talk to company what your blog is, the license you are writing it under, is your IP, can take with you

doesnt think we are in a diff place – there are things outside the scope of employment
if you write a book on weekends, its not theirs its yours
some things are blurry but not at the point where a company owns your work 24-7

Monitoring inside corps and how employees are behaving?

DHowell – if its on the public web, its readily monitored. Is there a line that should be drawn b/c employees are so public these days – should an employer turn away or is it all fair game

Companies need to be careful about looking for info. SOme companies dont want to know. Has a chilling effect and should be conservative

Question – how do you protect (international context) rights of expression, what people say elsewhere

We have one office
Every single country has free speech and free expression as part of their laws (even china)
every country has idea of free expression and value it – but differently that US does
try to do – push for the value of the open exchange of ideas
pushing on why info is good is huge
in almost every country, if what you say is true then you wont be liable

Posted in: Supernova09.
Last Modified: December 1, 2009

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