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.

Aaron P. Rubin

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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Lawrence W. Gallick

Social Links: Statehouse v. Smartphone

Federal Court Enjoins California Teen Privacy Law . . . Again

All Your Sale Are Belong to Us - Mitigating IP and Payments Risk in In-Game Economies (Part II – User-Generated Content and In-Game Payment Models)

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A New York State senator has introduced a bill that would make posting footage of a crime to social media with the intention of glorifying violence or becoming famous punishable by up to four years in prison and fines.Instagram hit the <a href="https://techcrunch.com/2017/04/26/instagram-700-million-users/" target="_blank" rel="noopener">700-million-user</a> mark.<a href="http://www.adweek.com/digital/social-media-advertising-spend-was-up-60-year-over-year-in-q1-report/" target="_blank" rel="noopener">Brands spent 60% more on social media advertising</a> in the first quarter of 2017 than they did in the same quarter last year, a new report shows.But savvy brands will do more to leverage social media than just buy advertising, according to a columnist in Entrepreneur. <a href="https://www.entrepreneur.com/article/288952" target="_blank" rel="noopener">Chatbots that can interact with customers on private messaging networks and in connection with in-app purchasing</a> are the next big things.And while we’re on the subject of private messaging networks, <a href="https://www.cnet.com/news/tumblr-is-inviting-you-and-your-friends-to-chill-at-the-cabana/" target="_blank" rel="noopener">Tumblr is launching its own version, called Cabana</a>. It encourages six friends to “hang out” and watch YouTube videos together.Pointing out the inadequacy of many celebrities’ methods of disclosing their status as paid endorsers of the products they promote on Instagram, the <a href="http://fortune.com/2017/04/20/ftc-instagram/" target="_blank" rel="noopener">FTC sent a letter to 90 high-profile social media users</a> that provides some guidance on how to fulfill the <a href="https://www.sociallyawareblog.com/2014/12/03/ftc-enforcement-action-confirms-that-ad-disclosure-obligations-extend-to-endorsements-made-in-social-media/" target="_blank" rel="noopener">endorsement guides</a>’ requirement that sponsored posts be identified in a “clear and conspicuous” way.<a href="http://www.adweek.com/digital/linkedin-060717-changes-privacy-policy-user-agreement/" target="_blank" rel="noopener">LinkedIn has updated its terms of service</a> and privacy policy, reportedly to make way for new platform features such as identifying when other LinkedIn members are in physical proximity to you, making available “productivity bots” to assist you in interacting with members of your LinkedIn network and allowing third-party services to display your LinkedIn profile to their users.<a href="http://www.cnbc.com/2017/04/18/facial-recognition-is-coming-to-us-airports-fast-tracked-by-trump.html" target="_blank" rel="noopener">Facial recognition systems will soon be used to identify visa holders</a> as they leave the United States, raising civil rights questions.The U.S. population’s <a href="https://www.nytimes.com/2017/04/13/us/political-polarization-internet.html?rref=collection%2Fsectioncollection%2Ftechnology&action=click&contentCollection=technology&region=stream&module=stream_unit&version=latest&contentPlacement=7&pgtype=sectionfront&_r=0" target="_blank" rel="noopener">political polarization isn’t a result of the rise of social media</a>, a new working paper issued by the National Bureau of Economic Research suggests, because hyper-partisanship is most prevalent among older Americans who are less likely than other Americans to consume media online.

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 Rubin

Social Links: Social ad spend soars; the FTC’s special message to “influencers”; LinkedIn changes terms of use

A New York State senator has introduced a bill that would make posting footage of a crime to social media with the intention of glorifying violence or becoming 

Social Links: Social ad spend soars; the FTC’s special message to “influencers”; LinkedIn changes terms of use

Well over a year after holding a <a href="http://www.sociallyawareblog.com/2015/12/01/cross-device-tracking-attracts-interest-from-the-ftc-and-guidance-from-the-daa/" target="_blank" rel="noopener">workshop</a> addressing privacy issues associated with cross-device tracking, Federal Trade Commission (FTC) staff have issued a <a href="https://www.ftc.gov/system/files/documents/reports/cross-device-tracking-federal-trade-commission-staff-report-january-2017/ftc_cross-device_tracking_report_1-23-17.pdf" target="_blank" rel="noopener">report</a>. The report sets the stage by describing how cross-device tracking works, noting its “benefits and challenges,” and reviewing (and largely commending) current industry self-regulatory efforts.The report also makes recommendations, which—while building upon the staff’s traditional themes of transparency and choice—do not introduce any materially new suggestions for compliance.The staff’s recommendations do not have the force of law, but they do indicate the steps that the staff believes a company should take in order to avoid a charge of unfairness or deception under Section 5 of the FTC Act.A Quick Review of Cross-Device TrackingAs more consumers utilize multiple devices in their daily lives, more and more companies are using new technologies to attempt to ascertain that multiple devices are connected to the same person. This is generally done through the use of either deterministic information (e.g., by recognizing a user through the log-in credentials he or she uses across different devices) or probabilistic information (i.e., by inferring that multiple devices are used by the same person based on information about the devices, such as IP address, location, and activities on the devices).As the FTC staff note in the report, cross-device tracking provides many benefits. For instance, it enables a seamless experience for users across their devices and can also help improve fraud detection by identifying devices not previously associated with a known user.Moreover, cross-device tracking facilitates a better online advertising experience by, among other things, more effectively targeting advertisements to users. The practice also, however, raises privacy concerns because it may not be adequately disclosed to consumers, and consumers may not be able to readily control it.State of PlayIn response to earlier FTC statements on the privacy issues raised by cross-device tracking, industry expanded the existing interest-based advertising (IBA) self-regulatory regime to specifically address cross-device tracking. Enforcement of the Digital Advertising Alliance (DAA) cross-device tracking principles began on February 1, 2017.These principles apply the DAA’s IBA self-regulatory notice-and-choice regime to cross-device tracking if browsing activity on one device is used to deliver ads on another device. In such scenarios, the DAA principles require that consumers be provided with a device-specific opt-out from both (1) the collection of data on the specific device in order to deliver IBA on other devices; and (2) the delivery of IBA on that device based on information collected from another device.The Staff Report—Status Quo Preserved?While the FTC staff report commends the IBA self-regulatory efforts of both the DAA and the Network Advertising Initiative, it also suggests that they could “strengthen their efforts.” Importantly, however, the report does not suggest changes to the notice and choice required by the DAA principles at this time. There had been some speculation that the staff might recommend that consumers be given a single way to opt out across all of their linked devices. It did not. Instead, staff acknowledged that current technological limitations would make it difficult to offer such a universal opt-out. The staff did suggest that companies “continue to reassess technical limitations and simplify consumer choices whenever possible.”While not upsetting the current self-regulatory approach, the report, nonetheless, provides suggestions about how basic privacy principles can be adapted to cross-device tracking:Transparency. The report recommends increased transparency and truthfulness, including about the types of data collected and how it is used and shared. Reinforcing statements by  former FTC Chairwoman Edith Ramirez, the report states that personally identifiable information includes any information that can be reasonably linked to a consumer or a consumer’s device. The staff accordingly suggests that “companies that provide raw or hashed email addresses or usernames to cross-device tracking companies should refrain from referring to this data as anonymous or aggregate, and should be careful about making blanket statements to consumers stating that they do not share ‘personal information’ with third parties.”Choice. Any opt-out that a company offers must be clear and effective. Moreover, its scope must be accurate and not misleading. For example, if an opt-out is effective only with respect to the device from which it is exercised, that fact should be clear from the opt-out instructions, and consumers should not be led to believe that the opt-out extends to all of their devices.Opt-In for Sensitive Data. Consistent with the FTC’s overall approach to sensitive data, the report recommends that companies obtain express consent to collect four types of sensitive information: health, financial, precise geolocation, and children’s information. Companies are encouraged to take a broad approach in this regard, given the ease with which sensitive information may be pieced together from activity across devices. For example, the use of a diabetes-related mobile app or a visit to an AIDS education website could be tantamount to the collection of sensitive information.Security. The report recommends that companies have reasonable security measures in place to avoid unauthorized access to and use of the personal information within their control. As part of this, and consistent with the FTC’s standard refrains regarding data minimization and deletion, the report recommends that companies keep only the information that is necessary for their business purposes.Cross-device tracking is becoming more prevalent, and the FTC is paying attention. Companies involved in tracking and targeting users across devices should consider the report’s recommendations when designing or revisiting their compliance strategies.*  *  *For other Socially Aware blog posts on cross-device tracking and the FTC’s regulation of interest-based advertising and marketing, please see the following: <a href="http://www.sociallyawareblog.com/2015/03/25/the-new-frontier-in-interest-based-advertising-ftc-shifts-focus-to-cross-device-tracking/" target="_blank" rel="noopener">The New Frontier in Interest Based Advertising: FTC Shifts Focus to Cross-Device Tracking</a>; <a href="http://www.sociallyawareblog.com/2015/12/01/cross-device-tracking-attracts-interest-from-the-ftc-and-guidance-from-the-daa/" target="_blank" rel="noopener">Cross-Device Tracking Attracts Interest From Regulators, Prompts Guidance From Industry Group</a>; <a href="http://www.sociallyawareblog.com/2016/09/19/interest-based-advertising-disclosure-requirements-become-more-clear-and-potentially-more-burdensome/" target="_blank" rel="noopener">Interest-Based Advertising Disclosure Requirements Become More Clear—and Potentially More Burdensome</a>.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

FTC Report Reinforces the Rules for Cross-Device Tracking