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.

Anthony M. Ramirez

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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

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The Children’s Online Privacy Protection Act of 1998 (“COPPA”), which became effective in April 2000, has long served as the primary regulatory tool of the Federal Trade Commission (the “FTC”) to police online privacy issues concerning children under 13.  The COPPA Rule (the “Rule”), promulgated by the FTC pursuant to COPPA, in general requires the operator of a website or online service that is directed to children or that knowingly collects personal information from children to obtain verifiable parental consent before collecting personal information from a child under the age of 13.  In September 2011, after the Act had been on the books for over a decade, the FTC announced that change was coming and proposed for public comment certain amendments to the Rule, as we explained last year.  After all, when the Act first passed in 1998, Mark Zuckerberg was just 14 years old, and social media giants like Facebook, YouTube and Twitter would not launch until well into the next decade.  Google had just been founded and operated out of a garage in Silicon Valley.  Pets.com was the next big thing.  Change was long overdue.On August 1, 2012, after reviewing over 350 comments to its proposed amendments, the FTC announced that it was seeking further proposed modifications to the Rule.  So what’s new this time?Network Advertisers and Other Third-Party Information Collectors Potentially Responsible for COPPA ComplianceAlthough COPPA applies only to websites or online services, the FTC’s proposed new modifications seek to expressly hold certain third-party plug-in, software download, and advertising networks accountable for COPPA compliance when they collect personal information through a website or online service that they know is child-directed.  Does this mean that such third parties are going to be held strictly liable for COPPA compliance when they are integrated into a website or online service?  No.  Although it considered this option, the FTC instead proposes to apply the Rule only if the third party “knows or has reason to know” it is collecting personal information through a host site or service that is directed to children.  Thus, if credible information that such use is occurring is brought to the attention of a plug-in or ad network, for example, it ignores this information at its peril.Mixed Approach to Mixed Audience Sites Historically, the FTC has not charged mixed audience websites that contain content appealing to both children and adults as “directed to children,” given the burden that this can impose on providers and users alike.  Instead, the FTC has charged such websites under COPPA only where they had actual knowledge that they were collecting personal information from children.  The FTC now seeks to codify this approach.  Under its proposed revisions, a website or service that has child-oriented content appealing to a mixed audience, where children under 13 are likely to be over-represented, will not be deemed “directed to children” if the site or service age-screens all users before personal information is collected.  Then, once the site learns who self-identifies as under 13, it must obtain appropriate parental consent before collecting any personal information and otherwise comply with the Rule with respect to them.  Websites or services that knowingly target, or have content likely to attract, children under 13 as its primary audience must still treat all users as children for COPPA compliance purposes.Information collected by “persistent identifiers,” including in connection with behaviorally-targeted ads, counts as “personal information” for COPPA purposesThe FTC announcement also included certain modifications and clarifications to some of its earlier, more controversial 2011 proposals.  Last fall, for instance, the FTC expanded the definition of “personal information” (the collection of which generally triggers a parental consent obligation) to include information collected by “persistent identifiers” that track a devise’s use over time and across different platforms.  This expansion met considerable resistance from some quarters because commentators felt that “persistent identifiers” track devise use, not personal use, and therefore should not count as collecting “personal information,” but the FTC did not alter its stance.  An exception, however, exists for information collected by persistent identifiers if it is used as support for internal operations.So what counts as “support for internal operations”?  The FTC now proposes to expressly define those operations as including “site maintenance and analysis, performing network communications, use of persistent identifiers for authenticating users, maintaining user preferences, serving contextual advertisements, and protecting against fraud and theft.”  Thus persistent identifiers can be used for these express purposes without regard to any COPPA compliance consequences.  But for all other uses, COPPA may become an issue.  Use of a persistent identifier for purposes outside of these operations, including for behaviorally-targeted advertising (specifically addressed in the recent commentary) will likely trigger the Rule’s obligations.  Because of this expanded definition, and the fact that age cannot be determined from a persistent identifier, sites directed to children may be well advised to engage in such activities only after first obtaining verifiable parental consent.  In fact, given the breadth of this potential rule, operators of sites wholly unrelated to children should take notice as this change may well portend a broader shift in policy within the FTC toward these issues.The FTC is accepting comments on the proposals until September 10, 2012.  The FTC expects to publish a final Rule this year.

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Julie O'Neill

More Change Coming: The FTC Proposes Further Significant Changes to Its COPPA Rule