Article courtesy of Morrison & Foerster’s MoFo Tech
As financial institutions and investors turn to social media to instantly share snippets of news and potential clues about market trends, the FBI and SEC are monitoring such postings for evidence of insider trading and improper investment information. Companies must comply with pre-Internet federal securities laws covering antifraud, advertising, record keeping, and more, even though the use of Facebook and Twitter is far outpacing the development of federal regulations aimed at social media.
Late last year, two FBI agents told Reuters that they see social media as a breeding ground for insider trading and securities fraud. “If there is any way to exploit it, these individuals will,” one agent said. The FBI also began a public search for an application that would scan social media for national security threats. “In trying to establish whether a trader who made significant gains in advance of market-moving news got nonpublic information from a company insider, the FBI might be interested in a list of the trader’s friends and contacts on social media sites,” says J. Alexander Lawrence, a Morrison & Foerster partner who works in securities law. “Evidence on Facebook, LinkedIn, or other sites could help the FBI connect the dots.”
Government investigators have been pursuing insider traders with growing intensity, according to Morrison & Foerster’s 2012 Insider Trading Annual Review. One reason could be the relative lack of success in bringing cases related to the financial crisis. “While the SEC and DOJ have been criticized, fairly or not, for not bringing more cases arising from the financial crisis—especially against individuals—both agencies have received abundant praise for their crackdown on insider trading,” the report concluded.
When communicating information through social media channels, companies have had to carefully consider whether material nonpublic information is being selectively disclosed in violation of Regulation FD. The SEC recently clarified its views regarding the applicability of Regulation FD to social media in a Report of Investigation which concluded that disclosure of material nonpublic information on the personal social media site of an individual corporate officer, without advance notice to investors that the social media site may be used for this purpose, is unlikely to qualify as an acceptable method of disclosure under the securities laws.
However, the SEC indicated that companies using social media to communicate information could apply existing guidance on the use of corporate websites in determining if that information is adequately being disseminated through social media channels so that a company won’t run afoul of Regulation FD, which would include taking steps to notify the market that material information about the company can be gleaned from those social media channels.
There are legal uncertainties about how far investigators can go in seeking information that is not publicly available on social media. Courts have ruled that certain messages sent on social media are protected under the Stored Communications Act, which limits the government’s power to force Internet service providers to disclose customer information. In addition, “friending” someone for the sole purpose of uncovering evidence may go against Facebook’s terms of service. States differ as to whether investigations led by attorneys can use deception, such as “friending” someone to uncover evidence, says Carl H. Loewenson Jr., a Morrison & Foerster partner and co-chair of the firm’s Securities Litigation, Enforcement, and White-Collar Defense Group. “If a prosecutor directs agents to do that, there is the risk of ethical violations resulting from engaging in misrepresentation under some state bar rules,” he says.