IRS Personal Use Policy
Your tax dollars at work:  The IRS has issued a new personal computer use policy that prohibits employees from using government computers to access social networking sites.  Other personal-use websites, such as Craigslist, dating sites, and pornographic sites are also off-limits according to the new policy.

Department of Veterans Affairs Social Media Policy
Not wanting to be outdone by the IRS, the Department of Veterans Affairs has also issued a new policy providing guidelines to ensure the privacy and security of personal information that appears in social media used by the department.  The policy includes directives regarding privacy policies, protection of First Amendment rights, regulatory compliance, and removal of inappropriate user comments.  Interestingly, the VA’s announcement of the new policy states that the VA has “over 100 Facebook pages, more than 50 Twitter feeds, two blogs, a YouTube channel, and a Flickr page.”

LinkedIn Privacy Concerns
LinkedIn, which has largely avoided the privacy-related controversies that have plauged other social networking sites, announced that it would not move forward with a plan to place users’ photos and recommendations in advertising displayed on its network.  LinkedIn’s head of marketing solutions products told users “we hear you loud and clear” after the company received complaints about the plan.

FTC Won’t Be Investigating Ashton Kutcher
Initial reports indicated that the FTC was preparing to harsh Ashton Kutcher’s buzz.  The word on the street was that the actor was facing questions from the Man about his failure to disclose his investments in Internet companies profiled in the online-only issue of Details magazine that he edited and posted on social networking sites.  Luckily for Mr. Kutcher, the bad vibes were dispelled when an FTC spokesman subsequently announced that everything was copasetic and there would be no investigation.

Facebook User Engagement on the Decline?
Feeding our insatiable appetite for social networking statistics, a new study suggests that user engagement with certain Facebook activities may be declining.  According to the study, Facebook activities such as virtual gifting, messaging to friends, joining a group, searching for new contacts, installing an app, and instant messaging are all on the decline.

Record Traffic for Facebook and Twitter
On the other hand, comScore’s July 2011 traffic numbers show that Facebook and Twitter both drew record traffic in terms of unique U.S. visitors for the month.  Facebook saw 162 million unique visitors, while Twitter drew 32.8 million uniques in July.

Pew Internet Survey: Social Media Is Not Taking Over the World Yet
On the third hand, a recent Pew Internet  survey indicates that social media use is not (yet) ubiquitous in the U.S., with only half of U.S. adults reporting that they use social media.  In the U.K., results of the annual survey from the Office of National Statistics indicate that 57% of the U.K. population aged 16 and over is now using social media.  All of these statistics can get confusing, but one thing is certain:  social media either is or is not taking over the world.

Facebook Gets Advanced Privacy Controls
Facebook announced significant changes regarding privacy, content sharing, and tagging.  Among other things, individual items of content on a user’s profile page now have drop-down menus that let the user change who can see the content – the public, just friends, or custom settings.  Previously, users had to go to the separate privacy settings page to make such changes.

Google+ Still Requiring Real Names
In our last issue of Socially Aware, we reported that William Shatner’s Google+ account was temporarily suspended for an unspecified rule violation.  Sex and technology blogger Violet Blue ran into similar problems recently when her Google+ account was shut down because Google mistakenly believed that she had not used her real name to sign up for the service.  Google apologized for the error, but for the time being is sticking to its requirement that users identify themselves with their real names when using the social network.

Does the Amy Hestir Student Protection Act Violate the First Amendment?
Bringing to mind War’s 1975 hit “Why Can’t We Be Friends,” a Missouri teachers union is suing to block the “Amy Hestir Student Protection Act,” which would restrict contact between teachers and students on social media sites.  According to the teachers, the new law violates teachers’ constitutional rights to free speech and association.

Lamebook Trademark Dispute
Reports are that Facebook and Lamebook have settled their trademark dispute with an agreement that lets the parody site continue to operate under its current name, as long as it adds a disclaimer to its website and does not seek to register its name as a trademark.  Our previous coverage of the Facebook/Lamebook dispute can be bound in the December 2010 issue of Socially Aware.

CAN-SPAM Does Apply to Facebook Ad Campaigns
Expanding upon the Ninth Circuit’s ruling in United States v. Nosal, Judge Jeremy Fogel of the Northern District of California recently held that an Internet marketer may be liable under CAN-SPAM and the Computer Fraud and Abuse Act, and for fraud, based on using Facebook to conduct advertising campaigns in violation of Facebook’s terms of service.  Judge Fogel’s most recent ruling in Facebook Inc. v. MaxBounty Inc. follows his prior order in the case, which we covered in the April 2011 issue of Socially Aware.

Lawsuit Against Facebook Tossed
Freedom Watch founder Larry Klayman apparently felt that the New York federal judge who tossed his $1 billion suit against Facebook, arising from allegations that Facebook was too slow to remove an anti-Jewish page from its site, showed a bit too much chutzpa.  According to reports, Klayman stated, “In my 35 years of legal practice, I’ve seen judges dismiss cases like this, thinking they can do whatever they want.  But they have to obey the law like we do.”  A Facebook representative, on the other hand, asserted that “lawsuits such as this – which seek to hold Facebook liable for failing to screen and remove content posted by its users – are precisely what the CDA was enacted to foreclose.”

Gilbert Arenas Tweets Are in the Public Interest
Loose tweets sink claims:  Orlando Magic point guard Gilbert Arenas sued in California federal court to prevent broadcast of the VH1 reality TV show “Basketball Wives:  Los Angeles”.  The athlete claimed that the show improperly used his name and likeness to imply that he was involved in the program.  District Judge Dolly M. Gee held, however, that Arenas’ prolific tweets, in which he described various details of his daily activities to thousands of followers, meant that he could not persuasively argue that his personal life is not a matter of public concern.  Publication of matters in the public interest is a First Amendment-based defense to California’s right of publicity law.  Free speech advocates and reality TV fans everywhere are no doubt breathing a sigh of relief.

Distilled Spirits Council Social Media Policy
The Distilled Spirits Council of the United States has issued new self-regulatory industry guidelines for advertising of alcoholic products on social media websites.  According to the new guidelines, only social media websites where at least 71.6% of the audience is reasonably expected to be age 21 or older will be permitted to advertise such products.

As we reported last month, the safe harbor in Section 230 of the Communications Decency Act (“CDA”) immunizes social media providers from liability based on content posted by users under most circumstances, but not from liability for content that the providers themselves generate.  But what about when providers block Internet traffic such as “spam” – does the CDA immunize service providers from liability for claims related to messages not reaching their intended recipients?

In two recent unpublished cases, Holomaxx Techs. Corp. v. Microsoft Corp. and Holomaxx Techs. Corp. v. Yahoo! Inc., Judge Fogel of the Federal District Court for the Northern District of California held that the CDA does provide immunity in such circumstances.  (Notably, Judge Fogel also decided earlier this year that Facebook postings qualify as “commercial electronic mail messages” regulated under CAN-SPAM, the federal anti-spam statute.)  The Holomaxx holdings did not break new ground, but the cases clearly show that Section 230 of the CDA provides immunity not just with respect to user-posted content, but also for service providers’ blocking and restriction of messages.

Plaintiff Holomaxx Technologies runs an email marketing and ecommerce business development service.  After what it alleged was MSN’s and Yahoo!’s continued refusal to deliver its legitimate emails, Holomaxx sued both companies for state law tort claims alleging interference with contract and business advantage, defamation, false light, and unfair competition, and for federal claims under the Wiretap Act, the Computer Fraud and Abuse Act, and the Stored Communications Act.  Seeking both damages and an injunction, Holomaxx claimed that MSN and Yahoo! “knowingly relie[d] on faulty spam filters” and that it was “entitled to send legitimate, permission-based emails to its clients’ customers now.”

In its complaints against Microsoft and Yahoo!, Holomaxx explained that it delivers for its customers ten million email messages a day, including three million to Hotmail/MSN users and six million to Yahoo! users.  Holomaxx claimed that it sent only legitimate, requested emails to consenting users and complied with CAN-SPAM.  According to Holomaxx, MSN’s and Yahoo!’s email filtering systems began blocking, rerouting, and/or throttling Holomaxx-generated emails to MSN and Yahoo! users, and MSN and Yahoo! ignored its requests to be unblocked and failed to identify specific problems with Holomaxx’s emails.  Also according to Holomaxx, MSN and Yahoo! users acted in bad faith because they did not work with Holomaxx in the manner prescribed by the abuse desk guidelines of the Messaging Anti-Abuse Working Group, to which both companies belong and which Holomaxx characterized as an “industry standard.”  Finally, Holomaxx claimed that anticompetitive purposes drove MSN’s and Yahoo!’s blocking, and that the fact that the two companies had initially resumed delivery of Holomaxx emails and then stopped again showed that the companies acted in bad faith.

MSN and Yahoo! moved to dismiss, citing CDA Section 230(c)(2), which on its face immunizes service providers for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers … objectionable,” and arguing that the facts that Holomaxx alleged were insufficient to overcome this statutory immunity.

Agreeing, Judge Fogel called CDA immunity “robust” and, citing the Ninth Circuit’s opinion in Fair Housing Council v. Roommates.com, LLC, noted that “all doubts must be resolved in favor of immunity.”  The court cited Zango v. Kaspersky, where the Ninth Circuit explained that the CDA “plainly immunizes” providers that “make[s] available software that filters or screens material that the user or the provider deems objectionable.”  In Zango, the Ninth Circuit affirmed the district court’s dismissal of a software maker’s suit against an anti-adware security firm for allegedly making it difficult for users who had installed the security firm’s anti-adware tools to use the plaintiff’s software.  However, the Ninth Circuit explained that a provider might lose immunity where it “block[s] content for anticompetitive purposes or merely at its malicious whim.”  Under that standard, the question was whether Holomaxx alleged sufficient facts to show that MSN and Yahoo! acted in an “absence of good faith” when they blocked Holomaxx’s emails.

The answer was no.  The court discounted Holomaxx’s reliance on the MAAWG guidelines because Holomaxx had not shown them to be an industry standard.

The fact that the companies temporarily resumed delivery of Holomaxx’s emails did not demonstrate an anticompetitive motive because the CDA gives providers wide discretion in deeming content objectionable.  As to alleged malice, the court explained that, “[T]o permit Holomaxx to proceed solely on the basis of a conclusory allegation that Yahoo! acted in bad faith essentially would rewrite the CDA.”  (Note:  On its face, the CDA did not apply to Holomaxx’s Wiretap Act and Stored Communications Act claims; the court dismissed those claims because it found that Holomaxx failed to adequately allege how MSN or Yahoo! had violated those statutes.)

A leading commentator has noted that the Ninth Circuit’s Zango case provided website operators a “high degree of freedom to make judgments about how to best serve their customers.”  The Holomaxx dismissals confirm that point.  With social media spam on the rise even  as email spam decreases and web-based email in general declines, both the Holomaxx and Zango cases could assist social media providers in their efforts to prevent unsolicited messages and abuse while at the same time maintaining the instant, social, viral qualities that keep users engaged and advertisers paying.

One final point – as one observer notes, Holomaxx’s compliance with CAN-SPAM, described in great detail in each of the complaints, did not matter to Judge Fogel’s holding.  That is, the mere fact that Holomaxx’s marketing messages were legal, did not compel Microsoft or Yahoo! to either deliver those messages or lose CDA immunity.  Thus, the court rejected an argument that might have resulted implicitly in the requirements of CAN-SPAM setting a ceiling, rather than a floor, for service providers’ anti-abuse efforts.