In a little-noticed decision, Matter of Noel v. Maria, Support Magistrate Gregory L. Gliedman—a Staten Island, New York family court official—recently permitted a father seeking to modify his child support payments to serve process on the child’s mother by sending her a digital copy of the summons and petition through her Facebook account.

Magistrate Gliedman’s decision struck us at Socially Aware—where we follow such developments closely—as a groundbreaking move. We are unaware of any published U.S. court opinion permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a Facebook account.

As we addressed in a 2012 Socially Aware blog post, in Fortunato v. Chase Bank a federal district court in Manhattan held that Chase Bank could not rely on Facebook to serve a third-party defendant.

While the same federal district court subsequently allowed the FTC to serve defendants through Facebook in FTC v. PCCare247, the service at issue in that case concerned documents other than the summons and complaint, and the defendants were two India-based entities and three India-based individuals who had already appeared through counsel and shown themselves to be on notice of the lawsuit.

Other cases authorizing service via social media have been similarly limited in scope. For example, in WhosHere v. Orun, the U.S. District Court for the Eastern District of Virginia allowed service via social media on a defendant who allegedly resided in Turkey. In Mpafe v. Mpafe, a Minnesota family court authorized the service of divorce proceedings on a defendant by “Facebook, Myspace or any other social networking site” where the defendant was believed to have left the country.

Continue Reading New York Family Court Magistrate Allows Unprecedented Service of Process via Facebook; Will Others Follow?

  • Buy local. Facebook has just announced that it’s going to provide hyper-local advertising services for merchants who want to reach consumers in very specific geographic areas. This new feature reportedly will allow a business to target just those consumers who are within a mile of the physical location of such business. Facebook is able to roll out this new business because so many of Facebook’s one billion plus mobile users permit Facebook to collect their location information, or otherwise provide Facebook with the data needed to allow hyper-local ads. This new feature should launch in the United States in just a few weeks.
  • Psst – wanna know a secret? Secret is a hot new social network designed to permit people to share their secrets online in a completely anonymous setting, without letting anyone know who has made the post. But how secure is it actually? According to a Wired article, not very secure. “White hat” hackers – those who try to find the vulnerabilities of a network without doing harm – have repeatedly found out people’s supposed secrets by using basic hacking techniques. The best-known hack works only one way; the hacker can find a person’s secret if the hacker knows the person’s e-mail address, but can’t tie a posted secret to any particular individual. The Wired article raises an interesting question as to whether any app or platform can be truly social and truly secret at the same time.
  • Nyet. The U.S. Court of Appeals for the Second Circuit recently rejected an effort by prosecutors to use a profile page from a popular Russian social media platform, Vk.com, to link a defendant with the sending of an allegedly fake birth certificate from a particular e-mail address. The Vk.com profile page at issue included a photograph of the defendant and the name “azmadeuz,” which was part of the e-mail address in question. The trial court had admitted the page into evidence, but the Second Circuit reversed, finding that, although it doesn’t take much to authenticate evidence, the page at issue could not be authenticated. In particular, the Second Circuit found that there could be no “reasonable conclusion” that the page at issue belonged to the defendant and wasn’t bogus in some way. The truly interesting question is whether there should be a higher standard for authenticating social media and other Internet-based evidence; the Second Circuit, however, declined the opportunity to set such a higher standard; rather, the focus should remain on the specific facts surrounding the specific item of evidence to be authenticated.

Big Brother isn’t just watching. A single mother in upstate New York was surprised to find that she had a Facebook page in her name, complete with photos of her, her son, and her niece. She hadn’t actually set up the page. It turned out that she was being investigated as a bit player in a federal drug investigation and that the Drug Enforcement Administration had created the page in her name, without her permission. The page, which has since been taken down, used the woman’s real name as well as photos from her cell phone, which had been seized by the DEA. The DEA even went so far as to send and accept friend requests for the woman. The woman was sentenced to probation and has sued the DEA agent who put up the page. Facebook says impersonating someone to set up a page is a clear violation of its terms of service.

Transparency vs. security. Twitter and other technology and communications companies frequently receive requests from the U.S. government for user data that the government asserts it needs for national security purposes. In the interest of transparency, these companies wish to disclose how many such requests they have received, if any, in a given span of time. The government wants to restrict the dissemination of this information and, earlier this year, it reached a settlement on the issue with Google, Microsoft, LinkedIn, Facebook, and Yahoo. Twitter did not reach any such settlement and it has now sued the government in U.S. District Court in California, claiming that the government restrictions violate the First Amendment. The government argues that the more is known about its sources and methods in collecting national security data, the less secure the nation will be. This should be an interesting First Amendment case.

In the city there’s a thousand things. There’s been a lot of talk about “the Internet of things.” Google now wants to bring the Internet of things directly to city dwellers. What about Zipcars that broadcast when they’re available, or bus stops that communicate with your mobile device about the next bus arrival? As part of its “Physical Web” initiative, Google is seeking to bring these and similar features to the urban environment. The idea is to interconnect seemingly unconnected physical objects that city dwellers encounter on a daily basis. As a Google designer says, “Just tap and use.”

  • Upward mobility. These days, Facebook videos, taken as a whole, are receiving a total of one billion views a day, and at least 65% of those views are occurring on mobile devices, Facebook VP of global marketing solutions Carolyn Everson noted at a recent Advertising Week panel discussion. Indeed, over the past two years, there’s been an astonishing 532% increase in watching videos via mobile devices, including tablets. That means that advertisers now have the key challenge of creating digital video content that invites engagement by consumers across platforms and devices. People are carving out moments during their everyday activities to consume media via mobile, and advertisers will want to take this into account in planning their campaigns.
  • Blue platform, red platform. Is your choice of social media platform a clue to your politics? A current survey suggests that it might be.  For example, according to the survey, Pinterest fans are older and wealthier than users of other major platforms; hence, they tend to be more conservative than the average Internet user. On the other hand, Twitter aficionados are more interested in politics than most people—and also more liberal. Facebook is the most politically neutral, on average, perhaps because it is so large that pretty much every group is well represented. It will be interesting to see if these findings, released by Quantcast, have an impact on online advertising strategies.
  • Troublesome tweets? In the upcoming high-profile retrial on sentencing issues of Jodi Arias, the Arizona woman who was convicted in 2013 of murdering her lover in 2008, the defense has moved to dismiss on several grounds the prosecution’s intent to seek the death penalty. The defense alleges, among other things, that a police detective’s wife improperly tweeted sealed trial information and uploaded “insulting videos” to YouTube. The trial is set to start on October 20.

Operators of social media platforms and other websites must manage a large number of risks arising from their interactions with users. In an effort to maintain a degree of predictability and mitigate some of those risks, website operators routinely present users with terms of use or terms of service (“Website Terms”) that purport to govern access to and use of the relevant website and include provisions designed to protect the website operators, such as disclaimers, limitations of liability and favorable dispute resolution provisions. But are such Website Terms enforceable against users and do they actually provide the protection that website operators seek? The answer may well depend on how the Website Terms are implemented.

Clickwrap vs. Browsewrap

Website Terms typically come in two flavors: “clickwrap” terms, where users are required to accept by taking some affirmative action such as checking a box or clicking an “I accept” button before using the website, and “browsewrap” terms that are provided to users through a link (often, but not always, at the bottom of the page) and purport to bind users even without any affirmative manifestation of acceptance. In determining whether Website Terms are enforceable against users, courts focus on whether users had notice of the terms and actually agreed to be bound by them. Not surprisingly, therefore, courts tend to look more favorably on clickwrap implementations as compared to browsewrap terms.

For example, in Fteja v. Facebook, Inc. (S.D.N.Y. 2012), the plaintiff claimed that Facebook disabled his Facebook account without justification and for discriminatory reasons, causing emotional distress and harming his reputation. Facebook moved to transfer the case to federal court in Northern California based on the forum selection clause in the Facebook terms of use, but the plaintiff claimed that he had never agreed to the terms of use. The court concluded that the plaintiff was bound by the Facebook terms, however, because he had checked a box indicating his acceptance when he registered for Facebook.

In contrast, Barnes & Noble had less luck enforcing its terms of use in Nguyen v. Barnes & Noble, Inc. (9th Cir. August 18, 2014). In Nguyen, the plaintiff ordered a tablet from Barnes & Noble at a discounted price but Barnes & Noble canceled his order. The plaintiff sued and Barnes & Noble moved to compel arbitration based on an arbitration clause included in its website’s browsewrap terms of use. The court held that Barnes & Noble’s terms could not bind the plaintiff, despite being presented through a “conspicuous” link during the checkout process, because Barnes & Noble did not prompt users to affirmatively assent to the terms.

Continue Reading Implementing and Enforcing Online Terms of Use

  • Filling a gap. Gap Inc., the clothing retailer, is using social media to establish a web presence focused on feminism, equal pay for equal work, and progressive values. For example, the company produced an Instagram video, which it also shared on its other social media channels, to support equal pay for women. The video is an extension of a company initiative to highlight “the missing 23 cents” – i.e., the 77 cents that women make for every dollar their male counterparts earn. This is a bold use of the Gap’s social media soapbox to promote its company values and, it appears, a very successful one.
  • Uber mess. A passenger in an Uber car in San Francisco was allegedly bashed in the head last month by the driver during an argument. The passenger suffered serious eye injuries and has said that he is likely to sue Uber. In similar cases, Uber has invoked Section 230 of the Communications Decency Act as a defense, claiming that it is merely an online marketplace and not a transportation provider. But while Section 230 has been interpreted broadly, even some of the statute’s staunchest defenders have questioned whether Uber can claim its protection in this case.
  • Tweeting your wish. Amazon and Twitter have just rolled out a new feature that enables consumers to use the new hashtag #AmazonWishList to add tweeted products to their Amazon Wish Lists, so long as they have first connected their Amazon and Twitter accounts. The companies appear to be betting that this new “wish list” functionality will be a natural extension of the way in which people already use Twitter to express interest in, and opinions about, products.
  • Where are the CEOs? According to a new study, fully two-thirds of the CEOs of the Fortune 500 have no personal social media presence at all. And of the ones who do participate in social media, two-thirds use only one of the major networks, usually LinkedIn.  Just 42 of the senior executives have Twitter accounts, and many of those are pretty inactive. The same number of the Fortune 500 CEOs use Facebook – still not very many at all. In an age in which virtually every company wants to brand itself on social media, it’s a bit surprising that so many of the top people have no personal experience with it.
  • Facebook lawsuit can proceed. A New York state appeals panel has permitted a lawsuit by Facebook against the Manhattan District Attorney’s office to proceed.  Facebook had sued the D.A.’s office over search warrants issued to 381 users of the network by the prosecutors in a fraud investigation. The appeals panel rejected prosecutors’ motion to dismiss Facebook’s challenge to the warrants and also gave several technology companies — among them Google, LinkedIn and Twitter — permission to file briefs supporting Facebook’s position. A full appellate hearing will occur in December. The closely watched case pits Fourth Amendment protection against prosecutors’ need for data stored by social media companies.
  • Hanging on the Vine. Vine, which began as a network in which people could share bare-bones six-second videos, has become an important venue for pop singers, actors and other entertainers who appeal to younger viewers. One observer said Vine has “an intensive burst perfect for the increasingly short attention span of Generation Z.” Vine is less than two years old but already seems to have found a niche, as top “Viners” have millions of followers on the site.

The Federal Trade Commission (FTC) announced this week that it sent warning letters to more than 60 national advertisers regarding the inadequacy of disclosures in their television and print ads. The letters are part of an initiative named “Operation Full Disclosure,” which the FTC implemented to review fine print disclosures and other disclosures that it believed were difficult to read or easy for consumers to overlook, yet included critical information that consumers would need to avoid being misled.

What Does it Mean for a Disclosure to be “Clear and Conspicuous”

Disclosures may be necessary to clarify a claim or to ensure that the full terms of an offer are adequately disclosed, in order to avoid a charge of deception by material omission. In FTC jurisprudence, disclosures must be “clear and conspicuous,” and while they may modify claims in the text of an ad itself, they may not contradict any such claims. The most recent pronouncement on how to make effective disclosures (this one was focused on online disclosures, but the general principles are the same) was issued in March 2013. The key is that if a disclosure is necessary to make an ad truthful and not misleading, it must be clear and conspicuous; otherwise, it is as though the disclosure was not made at all.

Continue Reading FTC Warns Advertisers to Check the Fine Print in “Operation Full Disclosure”; Shot Across the Bow Could Signal Law Enforcement Actions to Come

  • Status check.  In the recently released Corporate Directors Survey from PricewaterhouseCoopers, 41% of corporate board members reported that their companies monitor social media for adverse publicity.  That’s up from 32% in 2012.  One commentator suggests that a company’s entire board of directors—not just the members of its audit or risk committees—should be charged with social media oversight, given the reputational risk social media chatter poses and the medium’s potential as an effective investor relations tool.
  • Fightin’ words?  An Indonesian law student landed in a police detention cell for criticizing a historic city online because police in that country suspected her of running afoul of the 2008 Law on Information and Electronic Transactions, Indonesian legislation that provides prison time for anyone convicted of using electronic media—including social media networks—“to intimidate or defame others.”  Many criticize the law as being inconsistent with Indonesia’s successful transition from an authoritarian state to a robust democracy.
  • The wrong number.  Twitter users sometimes give the social media company their cell phone numbers in order to be able to view tweets as text messages. But when a cell phone number that has been submitted to Twitter for that purpose is reassigned to a new user, do Twitter’s text messages to that number violate the Telephone Consumer Protection Act? Beverly Nunes claims they do. In a suit she filed in the U.S. District Court for the Northern District of California, Nunes is seeking class certification, and at least $500 in damages for each unsolicited Twitter text she received.  In a Sept. 16 motion to dismiss Nunes’s complaint, Twitter contends that the texts do not violate the TCPA because, among other things, they were not sent using an “automatic telephone dialing system or an artificial or prerecorded voice,” as the statute requires.
  • Pin Money. Brands of all sizes have long used the virtual pin board/social media site Pinterest to promote their wares and drive traffic to their web sites. Beginning in October 2014, companies will be able to purchase paid advertisements on the site as well. Pinterest announced plans to make “Promoted Pins” available to more than just the handful of big brands that have been helping the company to test its ad product since last fall. The company expects to ultimately offer advertisers pay-per-click arrangements like the ones available to purchasers of Google’s sponsored search results, and is amending its privacy policy to state, among other things, that Pinterest may collect information about its users from its advertisers and in connection with its advertisers’ websites and apps.
  • Benched judge. Michael Maggio, a state trial judge in Arkansas, was removed from the bench by the state’s highest court after he acknowledged posting confidential details about court cases in social media outlets. The judge was handling a closed adoption involving actress Charlize Theron, and he admitted posting private facts about the case. After a report by a state judicial-discipline commission, he was removed from the bench and prohibited from handling any judicial office in the future. He was found to have violated at least 23 strictures that apply to sitting judges.
  • Sweet tweets. According to a study conducted by Twitter, the Twitter accounts of members of casts of television shows get a 228 percent increase in followers if the actors live-tweet their shows. This follows other studies that indicate that TV ratings can go up as a result of live-tweeting. Grey’s Anatomy and Scandal, both originated by Shonda Rhimes, are among the shows that have gotten major boosts from the social network.