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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In the recent online contracting case of <a href="https://scholar.google.com/scholar_case?case=12279872483928107605" target="_blank" rel="noopener">Fteja v. Facebook, Inc.</a>, a New York federal court held that a forum selection clause contained in Facebook’s <a href="http://www.facebook.com/legal/terms">Statement of Rights and Responsibilities</a> (the “Terms”) was enforceable because the plaintiff assented to the Terms when registering to use Facebook.  The court’s analysis and holding followed the recent trend of de-emphasizing the distinction between “clickwrap” and “browsewrap” agreements and instead focusing on whether the user was provided  with actual or constructive notice of the agreement’s terms and conditions.  In this case, the result turned on whether Facebook’s Terms were reasonably communicated to the plaintiff prior to his use of the Facebook.com site.The plaintiff, an active Facebook user, brought the action against Facebook in New York state court asserting that Facebook disabled his Facebook.com account without justification and for discriminatory reasons.  He claimed that the disabling of his account hurt his feelings, inflicted emotional distress and assaulted his good reputation among his friends and family.Facebook removed the lawsuit to New York federal court on the basis of diversity of citizenship, and then moved to transfer the action to federal court in Northern California, citing the forum selection clause in the Terms.  Facebook argued that because the plaintiff clicked through Facebook’s registration page and expressly acknowledged that he read and agreed to the Terms (including the forum selection clause), the Terms were valid and enforceable.  The plaintiff responded that there was no proof that he agreed to the forum selection clause and that he did not remember agreeing to the Terms.The court reviewed Facebook’s registration process, noting that after a new user provides his or her personal information and clicks an initial “Sign Up” button, he or she is directed to a security page that requires the new user to input a series of letters and numbers.  Below the box where the new user enters the letter/number combination, the page displays a second “Sign Up” button that is immediately followed by the phrase: “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service.”  The phrase “Terms of Service” is underlined, indicating that it is hyperlinked to the Terms.After this review of Facebook’s registration process, the court then described the historical development of online contracting law, referencing the <a href="https://law.justia.com/cases/federal/appellate-courts/F3/356/393/539823/">Register.com, Inc. v. Verio, Inc.</a>, <a href="http://cyber.law.harvard.edu/stjohns/Specht_v_Netscape.pdf">Specht v. Netscape Communications Corp.</a>, and <a href="http://ocoee.files.wordpress.com/2009/11/hines-v-overstock.pdf">Hines v. Overstock.com, Inc.</a> decisions, and the importance of establishing mutual manifestation of assent.  Following this discussion, the court pointed out that Facebook’s Terms are “somewhat like a browsewrap agreement in that the terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in that the user must do something else – click ‘Sign Up’ – to assent to the hyperlinked terms,” and that, unlike some clickwrap agreements, a new Facebook user can click to assent whether or not he or she has been presented with the Terms.  Finally, the court looked at the plaintiff’s level of sophistication and stated that an Internet user whose social networking was so prolific that losing Facebook would cause him mental anguish should understand that the hyperlinked phrase “Terms of Service” really means “Click Here for Terms of Service,” thereby establishing constructive knowledge of the Terms.The court concluded that the plaintiff’s registration for Facebook by clicking the “I accept” button constituted his assent to the Terms (including the forum selection clause) even though he may not have actually reviewed the hyperlinked Terms.  The court then, after considering the public policy ramifications of the transfer decision, held that the forum selection clause was enforceable and directed the action to be transferred to federal court in Northern California.Key Take Aways.  While the Fteja v. Facebook, Inc. case illustrates that U.S. courts may enforce a hybrid browsewrap/clickwrap agreement even where the user does not have actual knowledge of the terms and conditions, the safest approach for a website operator is to structure its online terms of service as a traditional clickwrap agreement that requires users to scroll through the terms and conditions and then click an “I accept” button.  In situations where this structure is not commercially reasonable, the following tips can be used to help establish user assent under U.S. law through constructive knowledge of the terms and conditions of an online agreement:<ul><li>Prominent Notice:  Include a prominent notice that cannot be skipped by users; such notice ideally should state that the use of service is subject to the hyperlinked terms of service.  Such notice should be provided in reasonably large font and contrasting colors that do not blend into the website’s background.  If possible, include an “I accept” button next to the notice.</li><li>Easy Access/Full Disclosure:  Provide easy access to the full text of the terms of service via a clearly identifiable hyperlink that links to a downloadable and printable version of the terms of service.  The hyperlink should be provided next to the notice and an “I accept” button (if any).</li><li>Readability:  Structure and phrase the terms of service so that they can be reasonably understood by users based on their anticipated level of sophistication.</li><li>Highlight Important Terms:  Make sure that any particularly important terms are clearly identifiable and not hidden.  If the website operator is especially concerned about an issue (e.g., enforceability of the limitation of liability provision of the terms of service), consider expressly referencing the concern as part of the general notice (e.g., “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service, including the limitations on vendor’s liability described therein”).</li></ul>

Facebooks’s Online Terms of Service Held to Be Enforceable

In the recent online contracting case of Fteja v. Facebook, Inc., a New York federal court held that a forum selection clause contained in Facebook’s Statement 

Facebooks’s Online Terms of Service Held to Be Enforceable

Late last year, Superior Court Judge David Ironson in Morristown, New Jersey, declined to dismiss an indictment of identity theft against Dana Thornton, who allegedly created a false Facebook page that portrayed her ex-boyfriend, narcotics detective Michael Lasalandra, in a highly unfavorable light.  According to the prosecution, Thornton used the page to impersonate her ex-boyfriend, publishing posts through which the false “Lasalandra” admitted to using drugs, hiring prostitutes and contracting a sexually transmitted disease.Thornton’s defense attorney Richard Roberts did not deny that Thornton created the bogus Facebook page, but argued that the indictment against Thornton failed to “quantify or qualify” the injuries Lasalandra suffered because of the impersonation.  Roberts also argued that New Jersey’s impersonation and identity theft statute does not include “electronic communications” as a means of unlawful impersonation and that Thornton’s actions thus did not fall within the scope of activity that the statute proscribes.Judge Ironson disagreed, holding that Thornton’s postings, by their nature, could harm Lasalandra’s “professional reputation” as a police officer.  He further held that New Jersey’s law is “clear and unambiguous” in forbidding impersonation activities that cause injury, and does not need to specify the means by which the injury occurs.  New Jersey’s impersonation and identity theft statute provides that a person is guilty if he or she “[i]mpersonates another or assumes a false identity and does an act in such assumed character or false identity for the purpose of obtaining a benefit for himself or another or to injure or defraud another.”  Judge Ironson construed this law broadly to include Thornton’s actions.As social media ambles from infancy into toddlerhood, the avenues for abuse available to users continue to increase.  Establishing a false Facebook page for the purpose of defaming another is part of a growing form of destructive impersonation through electronic means, sometimes referred to as “e-personation.”  E-personation requires far less information than many other forms of identity theft require.  In order to create a false Facebook page, a would-be e-personator does not need any of the victim’s personally identifiable information other than his or her name.  The power of the Internet to disseminate information, and the popularity of Facebook and other social media sites, make e-personation particularly harmful by enabling perpetrators to spread injurious statements much more quickly and effectively than would be possible using conventional, non-electronic means.To combat this phenomenon, some states have begun to enact legislation that explicitly criminalizes e-personation.  New York’s <a href="http://law.onecle.com/new-york/penal/PEN0190.25_190.25.html">criminal impersonation statute</a> makes it illegal to impersonate somebody “by communication by internet website or electronic means.”  In January 2011, California added an entire e-personation statute to its penal code, which includes opening a “profile on a social networking Internet Web site in another person’s name” in the definition of “e-personation.”  The Texas penal code includes a narrower “online harassment” statute that is limited to barring impersonation on “commercial social networking sites.”  And most recently, Washington state enacted an e-personation statute.New Jersey does not currently include any express e-personation provisions in its penal code, but an amendment that would specifically criminalize e-personation has passed the state Assembly and is currently being considered by the state Senate.  In Thornton’s hearing before Judge Ironson, Roberts attempted to use this fact to argue that Thornton’s alleged e-personation was outside of the scope of the current New Jersey statute.  Judge Ironson, however, agreed with prosecutor Robert Schwartz that the proposed amendment is only a clarification of the current law, under which e-personation already constitutes a form of injury-inducing impersonation.  As Schwartz stated, “In no way [is the current law] saying that electronic communication has been excluded.  No way did the Legislature ever intend for Ms. Thornton to get away with this kind of conduct.”As noted, a small handful of states currently have e-personation statutes, but Judge Ironson’s ruling in New Jersey demonstrates that even traditional identity theft and impersonation statutes can be applied by courts to prohibit e-personation.  This raises the issue of whether e-personation is an issue best dealt with through new legislation or under existing identity theft and impersonation laws, a question that has divided the Internet legal community.  Some <a href="http://verdict.justia.com/2011/11/22/dealing-with-e-personation">legal scholars</a> oppose express e-personation statutes, noting that laws attempting to respond to rapidly changing technology often become outdated quickly, may result in narrowing the scope of sufficient laws already in place, and can raise First Amendment issues.  <a href="http://sspblue.com/tag/e-impersonation/">Others </a>call for e-personation statutes in all states in order to increase protection for victims of acts similar toThornton’s.In the coming months, there will likely be further developments in Thornton’s case.  Although Thornton and the prosecution did make some attempts at a plea bargain, the prosecution has now stated that it intends to take the case to trial, and will prosecute Thornton for fourth-degree identity theft, which carries a maximum sentence of 18 months in prison.  Last December, Roberts filed a motion to be removed as Thornton’s lawyer, so the trial has been delayed.  In any event, as Thornton’s case plays out, it will be interesting to see how different states react to its outcome in their approaches to e-personation, an ever-growing and evolving negative side effect of the social media revolution.

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Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a

Jessica Kaufman

Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a professional services firm in a malpractice action; a lingerie company facing consumer protection claims, including claims of false advertising; and financial institutions facing claims under the federal and state contract and antitrust laws, RICO Act, Right to Financial Privacy Act, Fair Debt Collection Practices Act, and state unfair and deceptive practices statutes. She also regularly advises and represents clients in complex commercial disputes.What do you like best about your work? Our work is our role as problem solvers. As litigators, we help clients address immediate problems. But when we know our clients and their businesses well, our clients also turn to us for longer term advice, to help identify issues before they arise, and think about how to do things better.What do you enjoy doing in your free time? I try to work with my hands. I started learning wheel-thrown pottery last year and enjoy forcing my family and friends to accept impractically shaped mugs, not just at Christmas, but — lucky for them — all year long.How do you see your practice changing in the next few years? I see my practice including more state AG enforcement work in the years ahead. The regulatory environment for our financial services clients is poised to change dramatically at the federal level; active AGs in New York and California will see that as an opportunity to fill the void.

Vindictive Ex-girlfriend Could Face 18 Months in Prison for Facebook “E-Personation”

Vindictive Ex-girlfriend Could Face 18 Months in Prison for Facebook “E-Personation”