• Big and bigger. Facebook and Twitter are the leading social media networks and, according to a recent Forbes article, they have some interesting similarities and key differences.  Facebook is clearly the larger and more successful platform, with over 1.3 billion monthly active users and $2.9 billion in quarterly revenue, compared to Twitter’s 271 million monthly active users and $312 million in quarterly revenue. Both rely heavily on mobile users, with 86 percent of Twitter’s traffic coming via mobile devices while 68 percent of Facebook’s traffic is through such devices. And, every minute, there are roughly 350,000 tweets and 382,000 Facebook “likes.” Not bad for a 10-year old (Facebook) and an 8-year old (Twitter).
  • New media, meet old media. Can success on the ultra-popular social network YouTube translate into success in, of all things, printed books? The book publishing industry is betting that it can, and has searched the world of pop-culture personas on YouTube for people who might be able to convert their millions of online followers into book readers. Take Michelle Phan, whose YouTube channel with makeup and beauty advice has attracted more than seven million subscribers. Her new book, “Make Up,” is set for publication this month, and is generating a big buzz. One industry executive dubs the video stars-turned-authors phenomena a “book-publishing tsunami.”
  • Glass pain. We’re all aware that alcohol, drugs, smoking and gambling can become dangerous addictions. Will we soon be adding wearable computers to this list? According to The Guardian, scientists have recently diagnosed and treated a man “believed to be the first patient with internet addiction disorder brought on by overuse of Google Glass.” The patient reportedly removed his Glass only to shower and sleep, and, while sleeping, viewed his dreams as if he were still wearing the device. Although being treated for Glass addiction and alcohol addiction at the same time, the patient informed his doctors that his withdrawal from Glass was more difficult than his withdrawal from alcohol.

 

  • 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.”

  • Yik yuck. As we’ve discussed on this blog, secrecy is all the rage these days in the online world. Yik Yak – a particularly edgy social media app that seeks to preserve user anonymity – is sweeping the country, or at least the nation’s college campuses. With users’ identities concealed, the app has reportedly become a popular means for communicating deeply offensive remarks and even threats of violence. At one school, Colgate University, students launched a sit-in to protest against the ugliness they found on the app. And at the University of Tennessee, Dean of Students Melissa Shivers recently sent an email to students warning about the app and emphasizing the importance of civility on campus. With the growing popularity of anonymous social media platforms such as Yik Yak, expect to see increased tensions between anonymous speech rights and efforts to limit hateful or violent speech.
  • Listening in. For some time, many pharmaceutical companies have reportedly “listened in” on patients’ social media conversations to obtain a sense of how their products were actually being used, and data-packaging and data-mining companies have sprung up to help pharma firms get a handle on the discussions on Facebook, Twitter and other social media platforms. Now, investors too are starting to jump into this emerging field of “social listening” to get ideas about where to put their money. An Israeli company, Treato, is actively courting fund managers with its pitch that it can tap into these aggregate conversations. Even though no actual patient names are apparently used in these reports, a lot of people are raising privacy concerns. Big Data, meet Big Privacy – should be an interesting battle to watch.
  • Legally social. The Pennsylvania Bar Association just issued a formal ethics opinion on the use of social media by attorneys. Among the key provisions are ones requiring lawyers to have a basic working knowledge of social media as part of their competence in the law, prohibiting lawyers from disclosing confidential client information in response to negative online reviews, and permitting attorneys to access the public portion of jurors’ social media profiles while prohibiting efforts to access private information from such profiles. The formal opinion is one of the most comprehensive on the subject in any state, and is recommended reading for attorneys, regardless of their practice focus.

 

 

  • 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

  • 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.

Hooray for Hollywood. According to a new study by KPMG, television and movie viewers have never had it better. A report by the consulting company found that the overwhelming majority of well-known movies and television shows are available legally to U.S. viewers through online services such as Amazon Prime, Netflix and Hulu. The study found that fully 94 percent of popular titles were legally available through one channel or another. The study also pointed out that these legal services provide high-quality viewing, which is generally not true of illegal services. Maybe it is possible to compete with free? After all, sellers of bottled water have done well vis-à-vis tap water by offering products that are high-quality, reasonably priced, convenient and ubiquitous.

There’s an app for that too. Entertainers, celebrities and others who are popular with the teen-age and young-adult demographics are increasingly choosing to promote themselves on mobile app-based social networks, or so-called “chat apps,” rather than through Facebook or Twitter, where it can be hard to stand out amidst the sheer volume of posts. These new chat apps, including Line, Kik, Snapchat, WeChat and Viber, allow for more direct engagement with followers. For example, when Paul McCartney and his band recently headed to Japan, he used Line to interact with fans, personally responding to inquiries and offering a free pack of stickers featuring cartooned images of himself.

Hipster’s paradise. Here at Socially Aware, we’ve taken a keen interest in Ello, the incredibly hip new social media platform that is generating a big buzz in the tech community. Indeed, some have dubbed Ello the “anti-Facebook,” because it does not sell ads based on user data, does not require users to use their real names and has a business model that relies on users to pay for premium features that they select. It is also invitation-only, further sparking interest in the new platform. Ello’s founders say they are aiming the network at artists, designers and programmers – not at the whole universe.  They also report that Ello is doubling in size every three or four days. Will Ello become the next big thing? Will consumer concerns regarding online privacy fuel the growth of alternative platforms such as Ello and, in the search space, DuckDuckGo, services that purport to provide greater privacy protections for users?

  • Time out. New FTC rules will generally require Internet retailers to give consumers the option of a full refund for an online purchase that the retailer failed to ship within the time period promised in the retailer’s solicitation for the purchased item. If such solicitation doesn’t specify a time period, the online seller may be required to ship the merchandise within 30 days of purchase to avoid having to secure the consumer’s consent to proceed with the delivery instead of making a refund. Internet retailers have until December 8th of this year to get into compliance.
  • Breaking news. In an effort to ensure its users’ news feeds feature more of the stories they actually want to see, Facebook is updating its news feed algorithm to push timely stories to the top. While the number of “likes” and comments a story received always affected where it showed up in users’ news feeds, the new algorithm will also take into account when a story elicited those responses. Facebook’s refreshed news feed formula will also favor stories that concern topics that are currently trending on the social media site.
  • Back to school. The NYPD’s top brass has so far taken four classes designed to teach them how to send appropriate tweets from the department’s more than 40 Twitter accounts. The goal: To get every New York City precinct, public housing patrol unit and transit commander tweeting by year’s end as effectively as Boston police did when they used Twitter successfully refute false reports and announce an arrest in connection with the 2013 Boston Marathon bombings. Until January of this year, New York’s Finest had only a single account, @NYPDnews, which was run by the department’s media relations team.
  • Is Tumblr trendier? A survey released by Tumblr says the users of that social media platform have higher average incomes than users of Facebook, Twitter, or Pinterest, and a report from Adobe says that this translates into cash: The average revenue per visit from a Tumblr referral is $2.57 on tablets and 67 cents on smartphones. Both figures are higher than the numbers for Facebook, Twitter, or Pinterest.  According to an Adobe digital analyst, “the fact that [Tumblr] produces the highest revenue per visit from mobile devices is likely due to its user base, which is skewed to young, trendy and well-educated urbanites with a greater affinity for online purchases and the disposable income to spend more.”
  • Come together. At a tech conference in San Francisco on September 15, Facebook announced that it, along with Google, Twitter, Square Inc., and other companies, is launching an initiative to jointly develop software programs that can be shared for free. This move has a great deal in common with Facebook’s strategy of offering its technology, including hardware technology, to other companies in an effort to reduce the costs of development and broaden Internet use. Facebook’s Open Compute concept, unveiled in 2011, already permits it to share the designs for more efficient products such as servers and network switches.
  • Expert needed? How esoteric are forensic methods of technologically linking a person to an online video in a criminal case? A New Jersey man was on trial for invading his ex-girlfriend’s privacy by posting nude pictures of her on Twitvid.com, a video-sharing service. Through several steps, a police detective was allegedly able to tie the uploading of the photos to a particular IP address that was linked to the defendant. The defense objected on the grounds that these technical aspects were not fully understandable to the average juror and required an expert witness to present them. The trial judge, as well as a New Jersey state appeals panel, agreed that a hearing was necessary to consider the nature and extent of the detective’s evidence and whether she was qualified to testify about it or whether an expert was needed.