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After a semi-brief hiatus to engage in the practice of law (what a chore), I’ve made it back to the blog with some new insight to share. Over the past few months, hundreds of not thousands of blogs about social media have found their way onto the scene. It seems that the only thing more prolific than social media itself is the commentary offered by purported social media experts.
You’ve heard hype. You’ve heard hysteria. And you’ll continue to hear a whole lot more. What should you believe? As is usually the case, you’ll find the truth somewhere in the middle. In order to determine what constitutes the spectrum and where the “middle” actually is, we need to take a broad look at social media in general, how pervasive it has become, and how it is being used. As we begin to see creative implementations of this “social media revolution,” we begin to get a better understanding of where we are and where we are headed. The following video provides an excellent, albeit biased, summary of what social media is and how quickly and pervasively it infiltrated so many areas of our lives:
I think it is a little premature to compare the social media revolution to the industrial revolution. Okay, it is “a lot” premature for that comparison. But it is interesting nonetheless. And while more and more people jump onto the social media bandwagon, it remains to be seen whether social media his significant business implications beyond the already acknowledged means of contact, small-scale dissemination of information (when was the last time you had something that truly went “viral”), and social interaction. Only time will tell what the numbers described in the video will bear out. One thing is certain; the timeframe in which social media operates is significantly compressed compared to the timeframe in which other media outlets or other technologies have developed.
There are many things that make social media great. You can keep in contact with friends, you can exchange info with classmates and former co-workers from around the world, and you can even be introduced–or introduce yourself–to large audiences or prominent people that were never before accessible to the likes of you and me. Social media continues to open the lines of communication by making relevant information accessible and available in a timely manner.
As an attorney, one of the sites I frequent is JDSupra. The site is not your typical social network. Rather, it is a document repository for individuals and organizations within and without the legal profession:
JD Supra allows lawyers, law firms, and legal professionals to publish and distribute their work online to a wide audience.
Legal professionals publish and share court filings, briefs, alerts, articles, newsletters, and numerous other legal documents on JD Supra. Our tagline reads: “Give content. Get noticed.”
I frequently contribute articles, briefs, and orders. More frequently, I use the articles, briefs, and orders posted by others. It is a great way to promote myself and my practice and, at the same time, it is a great resource for staying abreast of evolving legal issues and cutting edge legal decisions.
Yesterday, I uploaded some of the recent filings and orders in the highly-covered and highly-debated Authors Guild v. Google, Inc., class-action lawsuit. You might know it as the Google Books or Google Library class action or even as the Google Books Settlement. For those who haven’t heard, Amazon, Microsoft, and Yahoo! have allied themselves in opposition to Google’s attempt to get judicial sanction that would allow Google to scan and digitize millions of pages and books that are still copyrighted but whose copyright owners cannot be located. And Amazon filed its Objection to the Proposed Settlement yesterday (September 2, 2009). I ran across it online, glanced through it, thought it might be of interest to others, and proceeded to upload it to JDSupra. At that point, I continued on with the rest of my busy day.
Several hours later, I was at a friend’s house playing soccer with his little girls (it is their first year of soccer–I can almost hold my own) when my Blackberry started to buzz. Adrian Lurssen, an early Yahoo! employee and current Director of Communications at JDSupra, sent me a tweet and asked if I would be interested in writing a brief guest-blog about Amazon’s Objection and the Google Books case in general. Standing on my friend’s back patio, I fired up my preferred mobile Twitter app (it is UberTwitter if you are wondering) and quickly replied that I was definitely interested.
Adrian and I DM’ed back and forth and tossed around a few ideas. My loving wife (who is a “real” IP lawyer–a patent attorney, as opposed to the rest of us “soft” IP lawyers–also known as IP litigators) cut me some slack and I pounded out a piece that is now prominently displayed on JDSupra’s blog and in JDSupra’s hot documents: Amazon.com’s Objection to Proposed Settlement in “Authors Guild v. Google, Inc”.
Thanks to various social media outlets, in under 24-hours, I found a copy of Amazon’s Objection, read it, became interested in it, and then uploaded it to JDSupra (which passed it along to thousands of its followers and subscribers). The filing caught Adrian’s eye and he quickly connected with me through Twitter (and, at least, my cell phone). We chatted back and forth. And now I have a featured piece posted on the front page of a website frequented by legal professionals.
I was given the opportunity to share some knowledge and “expertise” with an extremely large audience that would be unavailable to me but for Adrian’s and JDSupra’s help. JDSupra has a timely and relevant piece that is likely of interest to much of its audience. The symbiotic nature of this connection is obvious. It is a perfect illustration of what social media allows and how it can work.
Let me conclude by waxing philosophical. Maybe the question needs to change from: “What has social media done for me today?” to: “What have I done for social media today.” If you make valuable contributions to the medium, the medium will reward you in spades. It may not happen immediately (Adrian and I have followed each other on Twitter for at least half a year) but opportunities will come and you can seize them, if you so choose.
We have previously discussed the growing trend among employers to utilize social media sites such as Facebook, MySpace, and Twitter to evaluate and investigate both applicants and current employees. As social media continues to proliferate among nearly all age groups and through all socio-economic strata, this “fact-finding” approach by employers (and friends and neighbors) will become more and more popular. Case and point: the Florida Bar Examiners recently adopted a rule that will allow the examiners to review social media profiles of certain bar applicants as part of the “Character and Fitness” review.
This story started making waves around the Internet a few days ago following Kashmir Hill’s post at True/Slant and national attention soon followed as the story was featured on David Lat’s Above the Law blog as well as Law.com’s Legal Blog Watch.
The Story. The Florida Bar Examiners did indeed adopt a rule that allows them to review social media profiles for select applicants as part of the character and fitness evaluation. Significantly, this new rule does not apply to all applicants to the Florida Bar. It is surprising to me that the bar examiners would include the limits they thought necessary. Under those limits, the rule only applies to:
• Applicants who are required to establish rehabilitation under Rule 3-13 “so as to ascertain whether they displayed any malice or ill feeling towards those who were compelled to bring about the proceeding leading to the need to establish rehabilitation;”
• Applicants with a history of substance abuse/dependence “so as to ascertain whether they discussed or posted photographs of any recent substance abuse;”
• Applicants with “significant candor concerns” including not telling the truth on employment applications or resumes;
• Applicants with a history of unlicensed practice of law (UPL) allegations;
• Applicants who have worked as a certified legal intern, reported self-employment in a legal field, or reported employment as an attorney pending admission “to ensure that these applicants are not holding themselves out as attorneys;”
• Applicants who have positively responded to Item 27 of the bar application disclosing “involvement in an organization advocating the overthrow of a government in the United States to find out if they are still involved in any related activities.”
My response: this rule is a good idea and should be expanded to cover all bar applicants. The rule should be considered and adopted by state bars, government contractors, employers, and anyone else who has access to publicly available information (don’t tell me you didn’t look up the sex offender registry before you bought your last house). As long as denied-applicants have access to the specific reasons for their denial and a way to appeal or dispute the denial, the rule is quite sound. After all, practicing law is a privilege not a right (my apologies to the cliché police).
This isn’t like a potential employer using a credit report or score in the evaluation process. In that situation, the government has stepped in and said that, because job-applicants typically don’t have free access to their credit reports and because they have little or no control over what gets put in and what gets left out, certain protections need to be put in place. Thus, based on the recognition that the inf0rmation in credit reports may be helpful to employers, Congress enacted the Fair Credit Reporting Act (“FCRA”) so that applicants and individuals will be adequately informed when their credit report is being reviewed by a potential employer and so that the applicant receives notice when an adverse employment decision is being made based on the information in the report.
But Facebook hardly needs the protections offered by the FCRA. The last time I sat down and tried to add a blurb to my credit report, well, it didn’t really work out how I planned. Unlike a credit report, your Facebook and MySpace pages are created by and controlled by–wait for it–you. The Facebook Beacon fiasco aptly illustrates the difference between user-controlled content and information being shared without the user’s consent or knowledge.
You control what you post on your Facebook Wall; you determine who to add as MySpace Friends; you are the one who is writing those oft-silly (and more often meaningless) tweets. If you voluntarily make your private information publicly available, you should not be surprised when the publicly available information is discovered by the public.
Candidly, I doubt the bar examiners really care about what you and your friends did last weekend; but they do (and should) care if you said you did one thing but actually did another. Anyone who has already been subjected to the character and fitness exam conducted by various state bars has probably spent hours tracking down parking and speeding tickets from “infractions” committed more than a decade ago in who-knows-what state or country.
Is this information necessary? No. Do we supply it? Yes. Why? Because those tickets are public records and if a bar examiner looks hard enough and finds out that we didn’t disclose them on our applications, suddenly our candor before the tribunal (also known as honesty) comes into question. And while a parking ticket from 15 years ago isn’t particularly important, dishonesty by an applicant of the bar to the bar is more troublesome. Just as dishonesty by a job-applicant to its potential employer is a bad way to go about forming an employment relationship.
Like all publicly available information, bar examiners should be able to use social media outlets and profiles in evaluating their candidates. The bigger question in my mind is why the Florida Bar Examiners are limiting it to Facebook. As a practicing lawyer, one of the first things I do when we open a new matter is head straight to Google (and occasionally Bing) to vet the names of all the parties and witnesses. Since they made the information (or compromising pictures) publicly available, they have made the decision to allow the public to access and use the information in any (non-lawbreaking) manner.
The Qualifier (for you people who are ready to rush to the comments and condemn me as anti-privacy): This discussion is about publicly available information. I know that the Florida Bar Examiners discussed several options and alternatives (such as requiring the applicant to “friend” the examiner or mandating disclosure of the applicant’s social media site passwords). Any rule that allows access to information that is not publicly available should have protections, such as those implemented by the FCRA, to safeguard privacy interests.
If you want to limit your publicly-available profile on Facebook or MySpace and only share the details with your friends, you have my blessing when you fight the bar examiners on whether they should be allowed to access your private information. I would certainly object if the character and fitness committee came asking for access to my journal (as opposed to a publicly available blog — like this one) or if they wanted to read what random high-school acquaintances wrote in my yearbook.
The Takeaway. In my mind, this issue warrants little, if any, debate. If you don’t want the information that you wrote on that social media site to be available to future employers, bar examiners, or the IRS, don’t hit the submit button. If you decide that your status update is important enough to be published on Mr. Gore’s Internet, take the necessary precautions to keep it out of the public domain.
This core “issue” is not an issue at all–there are plenty of tangential issues (such as how to handle information about you that is posted online by a “friend,” acquaintance, or opposing counsel, without your knowledge or consent). Let’s focus our attention on those more meaningful issues.
Today’s post of the day comes from Mark Toth’s Manpower Employment Blawg. The post is entitled: “How Employers Use Social Media” and is based on the readily observable notion that “[m]ore and more employers are using social media to gather ‘intelligence’ on employees and potential candidates.”
The article walks you through a bunch of interesting statistics about what social media sites employers are using to evaluate employees and job candidates and utilizes real-world examples of tweets (Twitter) and Facebook status updates that have resulted in current employees getting canned and job hunters getting passed over.
To his credit, Mr. Toth also discusses how job candidates are successfully using social media to increase their chances and the particular information that employers look for when evaluating candidates online. The bottom line, according to the post:
Your employees are using social networking tools. If you don’t, too, you might be missing a hugely valuable source of information.
So, get connected. But be careful about anything (1) you personally post and/or (2) use to make employment decisions. For the former, use our time-honored “mom” test (don’t say anything you wouldn’t want your mother to read). For the later, the test is simple: job-related, job-related, job-related. If it ain’t, don’t use it.
My $0.02: As a management-side employment law attorney (aka employment defense attorney), I can confidently say that, in addition to having your employers scour your social media activities, your employers’ lawyers are doing the very same thing. Every time that your employer catches wind of a grievance, administrative charge, EEOC complaint, or a potential employment-related lawsuit, they will likely be all over your social media sites (like white on rice). At a minimum, you can rest assured that, when I get retained on a case, social media sites are one of the first places I go. That fact alone should give additional importance to the “mom” test described by Mark Toth.
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