Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

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Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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It seems that almost everyone uses social media today. Of course, this means that most every juror is a social media user, and that courts are dealing with the thorny questions that arise out of the proliferation of social media usage among jurors.Like the long-standing practice of warning jurors not to talk about the case with friends and family or to read press reports about the case during the course of trial, courts now routinely caution jurors not to send messages about the case through social media, tweet about the case or look for reports about the case on social media sites. Courts are also taking notice of the potential pitfalls that arise when attorneys poke around prospective jurors’ social media sites to try to decide who may be a friendly (or unfriendly) juror.Recently, a federal court in the Northern District of California addressed this subject in the high-profile copyright case Oracle v. Google. The case concerns allegations that Google unlawfully incorporated parts of Oracle’s copyrighted Java code into the Android operating system.In a recent <a href="https://regmedia.co.uk/2016/03/28/oracle-google-socialmedia.pdf" target="_blank" rel="noopener">order</a>, the court asked counsel for Oracle and Google to refrain from conducting any Internet research on potential or empaneled jury members prior to the trial verdict. Because an outright ban would have the unintended consequence of prohibiting the lawyers for the parties—but no one else in the courtroom—from accessing online information on the jurors, the court opted instead to seek the parties’ agreement to a voluntary ban. As added incentive to reach agreement, the court offered counsel for both sides extra time to screen potential jurors during voir dire. Both parties ultimately agreed to the voluntary ban.The court cited three reasons to support its decision to seek the ban.First, the court reasoned that jurors, upon learning that counsel was investigating them, might be tempted to investigate the lawyers and the case online themselves. And because there is plenty of information online about the high-profile dispute, the court saw an “unusually strong need” to deter any jury member from conducting out-of-court research. The court noted, for example, that a Google search for “Oracle v. Google” yields almost one million hits, and that both parties have hired online commentators to promote their respective sides of the case on blogs and other websites. Because the large amount of online commentary in particular could present a significant risk to a fair hearing, a ban would help ensure that the jury reaches a verdict on the basis of trial evidence only.Second, the court ruled that online jury research could enable counsel to make “improper personal appeals” to individual jurors during jury argument. For instance, if counsel learns through a social media search that a juror’s favorite book is To Kill a Mockingbird, counsel could, in an attempt to capture the attention of an empaneled juror, craft an argument regarding copyright law that weaves in references to that book and the recent death of Harper Lee. The court reasoned further that such calculated appeals would be “out of bounds” because the judge might not “see what was really in play.”Third, a voluntary ban would protect the privacy of potential jurors. Because “[t]hey are not celebrities or public figures,” the court ruled that the privacy of potential jurors should not be invaded except to reveal bias or a disinclination to follow court instructions. In anticipation of the argument that potential jurors choose to expose themselves to public scrutiny through their social media privacy settings, the court ruled that “understanding default settings is more a matter of blind faith than conscious choice.”The court’s approach creates new precedent in the area of jury selection procedure, where to date parties have been left with little guidance. Indeed, the court itself recognized that “there are precious few decisions” that address the specific issue of whether counsel may conduct Internet and social media research on jurors in their cases.<a href="http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf" target="_blank" rel="noopener">Existing guidance</a> on this issue stems largely from the American Bar Association (ABA), which has stated that counsel’s “passive review” of a juror’s website or social media profile, while refraining from making access requests to jurors, does not violate ethical rules on ex parte jury communications. That being said, even the ABA has cautioned that courts may limit social media research in certain cases.Similarly, the New York State Bar Association (NYSBA) advised recently that, prior to jury selection, judges should address and resolve, on a case-by-case basis, use of social media by attorneys for the purpose of investigating jurors. Relevant questions to consider include what social media services attorneys may review; which social media platforms counsel or her reviewing agent (e.g., a jury consultant) is a member of; and whether results of social media monitoring will be shared with opposing counsel and the court.The Google v. Oracle decision represents a key step toward marking clear boundaries for social media and Internet investigation by counsel. Further, the decision shows that, left unchecked, online jury research could lead to improper jury appeals, unwarranted privacy invasions, and—perhaps most importantly—compromise of the fair trial process.As social media use continues to proliferate, we can expect that courts and bar associations will provide further guidance on how attorneys can properly use social media to research the background of both prospective and sitting jurors.For more on ethical considerations arising from social media use by attorneys, see our recent blog post on <a href="http://www.sociallyawareblog.com/2016/04/26/new-jersey-supreme-court-questions-ethics-of-friending-a-litigation-foe/" target="_blank" rel="noopener">New Jersey Supreme Court Questions Ethics of “Friending” a Litigation Foe</a>.

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Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving 

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Judge in High-Profile Case Obtains Attorney Agreement Not to Engage in Juror Social Media Snooping

Judge in High-Profile Case Obtains Attorney Agreement Not to Engage in Juror Social Media Snooping