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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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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On February 27, 2013, the European Article 29 Working Party (a group comprising representatives from all of the data protection authorities of the EU Member States, referred to in this articles as “WP29”) issued an <a href="http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2013/wp202_en.pdf">Opinion</a> on the privacy and data protection implications of the use of apps on mobile devices (“the Opinion”). The Opinion primarily targets app developers, but provides recommendations for all players in the app ecosystem, including operating system (“OS”) developers and device manufacturers, app owners, app stores, and other third parties such as analytics and advertising providers. The Opinion sets out “musts” and “recommendations” for each player and is to some extent consistent with the U.S. Federal Trade Commission’s staff report on <a href="http://www.ftc.gov/os/2013/02/130201mobileprivacyreport.pdf">Mobile Privacy Disclosures (February 2012)</a>.The Opinion considers the key data protection risks of apps to be a lack of transparency and a lack of the ability to provide meaningful consent. The Opinion recognizes that the ‘real-estate’ on a mobile device is limited because of limited screen sizes, but nonetheless states that users should be appropriately and adequately informed about how their personal information is used, and—where required—that users’ consent should be obtainedScope and Applicable LawThe Opinion states that mobile apps are covered by both the <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML">Data Protection Directive 95/46/EC</a> and the <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32009L0136:en:NOT">ePrivacy Directive 2009/136</a>. Most data processed via apps is personal data, including unique device identifiers, user IDs, browsing history, contact data, phone calls, SMS, pictures and videos. Any player in the app ecosystem, regardless of its location, must comply with EU/EEA laws if it targets individuals resident in the EU/EEA. However, non-EU/EEA controllers are exempt where data is only processed in the device itself without generating traffic to the applicable data controller(s). Importantly, the user’s acceptance of terms of use or a contractual agreement will not exclude the applicability of EU law and the data controller’s or processor’s obligation to comply. Accordingly, app stores must “warn” app developers about EU/EEA obligations before submitting and making the app available to EU/EEA residents, and reject apps that do not comply.NoticeThe Opinion emphasizes the need to provide comprehensive, easy-to-understand, and timely notice. Notice must be provided “at the point when it matters to consumers, just prior to collection of such information by apps.” In practice, this will mean prior to installation of the app. This notice requirement not only applies to app developers but also to app stores and any OS or device manufacturers who provide pre-installed apps.Notices should at least contain information about:<ul><li>The entity that is legally responsible for the processing of the data, and how that entity can be contacted. Where there are multiple entities involved, apps should provide for a single point of contact.</li><li>The categories of personal information that will be processed through the app, in particular where such categories are not intuitively obvious.</li><li>The purposes for which information is processed. WP29 notes that such purposes should be described narrowly and specifically, and warns for “purpose-elasticity.”</li><li>Whether or not information data will be shared with third parties.</li></ul>The Opinion further states that “the essential scope of the processing must be available to the users before app installation via the app store. The relevant information about the data processing must also be available from within the app, after installation.” In practice, this will mean that both app developers and app stores carry the biggest burden of ensuring adequate notification, both prior to and after installation. WP29 favors a layered approach that provides essential information in an initial notice and further information via (links to) a complete privacy policy. The Opinion also suggests the development of industry-wide visual logos, icons or images.ConsentConsent is required for any processing of data via apps. The Opinion states that the two different consent regimes overlap: Under Article 5(3) of the ePrivacy Directive, consent is required to access or store any information on a user’s device; and under the Data Protection Directive, consent is required to process personal data. In practice, a single consent can be obtained for both types of processing. Consent should be “granular” and simply clicking an “install” button would not suffice. In order for consent to be valid, it needs to be freely given, specific and informed (which places additional importance on the quality and scope of the notice). Other legal bases may be used for processing at a later stage (during use of the app) but only by app developers.ChildrenThe Opinion also calls for extra attention to applicable national age requirements. Many national privacy laws in EU Member States require parental consent for minors of certain ages. In addition, even when consent can be legally obtained from a minor and the app is intended to be used by a minor, developers should be particularly mindful of the minor’s potentially limited understanding of, and attention for, information about data processing. Developers and app stores should adapt their notices and data processing practices accordingly. WP29 further notes that children’s data should never, whether directly or indirectly, be used for behavioral advertising purposes, as this will fall outside the scope of a child’s understanding.Security and RetentionApp developers should pay specific attention to the security of their apps, and implement security considerations at the design stage of the app. They should also carefully consider where data will be stored (locally on the device or remotely), and not use persistent (device-specific) identifiers, but instead use app-specific or temporary device identifiers to avoid tracking users over time.Also, app developers must consider appropriate retention periods for the personal information they collect, taking into account that users may lose their devices or switch devices. App developers are recommended to implement procedures that will treat accounts as expired after defined periods of inactivity.Different PlayersAlthough the Opinion references app developers in many of its requirements and recommendations, WP29 acknowledges that responsibilities are shared between different players. The Opinion states that every app should provide a single point of contact for users, “taking responsibility for all the data processing that takes place via the app.” The Opinion provides the following recommendations:<ul><li>App stores are usually data controllers, in particular when they facilitate upfront payments for apps, support in-app purchases and require user registration. App stores should: (i) collaborate with OS and device manufacturers in developing user control tools (such as symbols representing access to data) and display them in the app store; (ii) implement checks in their admissions policy to eliminate malicious apps before making them available in the store (and provide detailed information on such submission checks to users); (iii) implement a privacy-friendly remote uninstall mechanism based on notice and consent; (iv) collaborate with app developers to proactively inform users about data security breaches; and (v) consider the use of public reputation mechanisms whereby users rate apps not only on their popularity but also on privacy and security.</li><li>OS and device manufacturers are usually the data controllers (or joint controllers) when they process data for their own purposes, for example for smooth running of the device, security, back-ups or remote facility location. OS and device manufacturers should: (i) develop technical mechanisms and interfaces that offer sufficient user control, in particular via built-in consent mechanisms at the first launch of the app or the first time an app attempts to access data that has a significant impact on privacy (this also applies to pre-installed apps); (ii) ensure that the app developer implements sufficiently granular control and can access only the data necessary for the functioning of the app; (iii) ensure that the user can block the access to the data and uninstall the app in a simple manner; (iv) implement mechanisms to inform users about what the app does, what data the app can access, and provide settings to change parameters of processing (OS and device manufacturers share this responsibility with app stores); (v) develop clear audit trails into the devices, such that end users can see which apps have been accessing which data on their devices; (vi) prevent covert monitoring of users and put in place a mechanism to avoid online tracking by advertisers and other third parties (in particular, default settings must be “such as to avoid any tracking”); and (vii) ensure security by strengthening authentication mechanisms, enabling strong encryption mechanisms, and providing security updates.</li><li>Ad providers, analytics providers and communications service providers act as data processors where they execute operations for app owners such as analytics, provided they do not process data for their own purposes or share data across app developers. In this context, such third parties have limited obligations, mostly related to data security. However, third parties are data controllers where they collect or share data across apps, provide additional services, or provide analytics figures “at a larger scale,” such as for app popularity and personalized recommendation. In such cases, third parties should: (i) obtain consent for behavioral or targeted advertising, as well as accessing or storing any information on the device; and (ii) apply security requirements, in particular secure data transmission and encrypted storage of unique device and app identifiers and other personal data. Where communications service providers issue branded devices, they must ensure that consent is obtained for any pre-installed apps. Ad providers must not deliver ads outside the context of the app, such as by delivering ads through modified browser settings or placing icons on the mobile desktop.  Advertisers should further refrain from using unique device or subscriber IDs for tracking purposes.</li></ul>

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Managing Partner, Amsterdam and Brussels

Alex van der Wolk, co-chair of Morrison Foerster’s preeminent Global Privacy & Data Security practice and managing partner of the firm’s Amsterdam and Brussels offices, employs his nearly 20 years of experience to advise global companies on their most complex data strategies and compliance programs governing all aspects of information management. 

With more than a decade of experience, Mr. van der Wolk helps clients develop privacy strategies for digital transformations, industrial IoT, telematics, Big Data, commercial and marketing programs, a

Alex van der Wolk

Alex van der Wolk, co-chair of Morrison Foerster’s preeminent Global Privacy & Data Security practice and managing partner of the firm’s Brussels office, employs his nearly 20 years of experience to advise global companies on their most complex data strategies and compliance programs governing all aspects of information management.

European Privacy Regulator Issues Important Opinion on the Use of Apps

On February 27, 2013, the European Article 29 Working Party (a group comprising representatives from all of the data protection authorities of the EU Member Sta

European Privacy Regulator Issues Important Opinion on the Use of Apps