My Favorite Day of the Year.

Today is my favorite day of the year...and this quote describes why. Hope Springs eternal...this could be the year... Happy First Day of Spring Training.

 "Ray, people will come Ray. They'll come to Iowa for reasons they can't even fathom. They'll turn up your driveway not knowing for sure why they're doing it. They'll arrive at your door as innocent as children, longing for the past. Of course, we won't mind if you look around, you'll say. It's only $20 per person. They'll pass over the money without even thinking about it: for it is money they have and peace they lack. And they'll walk out to the bleachers; sit in shirtsleeves on a perfect afternoon. They'll find they have reserved seats somewhere along one of the baselines, where they sat when they were children and cheered their heroes. And they'll watch the game and it'll be as if they dipped themselves in magic waters. The memories will be so thick they'll have to brush them away from their faces. People will come Ray. The one constant through all the years, Ray, has been baseball. America has rolled by like an army of steamrollers. It has been erased like a blackboard, rebuilt and erased again. But baseball has marked the time. This field, this game: it's a part of our past, Ray. It reminds of us of all that once was good and it could be again. Oh... people will come Ray. People will most definitely come."

Here we go...(I'm going to be a beer lawyer)

Now that we've made it through the holiday season, and have officially jumped headlong into 2012, I have a little something I'd like to share....starting Monday, January 9, I will no longer be an attorney with Armstrong Teasdale LLP. 

While I will miss the many friends I've made at Armstrong over the last decade, I'm very excited to announce that I have accepted a position as Associate General Counsel at Anheuser Busch-InBev and starting next Monday I will officially be a "Beer lawyer." 

In this new position I will be able to meld my interests for antitrust, advertising, marketing, distribution, social media, government relations....and beer, into one position that seems as if the job description was written specifically for everything that I love about my work. While leaving Armstrong Teasdale was not something I ever expected to do, the opportunity presented by this position, and this incredible company, is one which in many respects seems almost too good to be true and I'm very much looking forward to starting this new chapter in my career.

I want to take a second to thank all my friends at Armstrong Teasdale, the many clients that I've worked with over the years, and all the friends I've met in the social media world...without the experience that I was able to gain through our work together this never would have been possible.  Next time you see me out, the first Budweiser is on me...Here we go.

Judge Stays Facebook Law

Just found out that a Judge has stayed Missouri's "Facebook law" stating that the law acts to chills teachers’ speech. I have not seen the opinion yet but hope to provide analysis as soon as it is released. bit.ly/nCxAN9

Missouri's Social Media Law -- Update

Missouri's Teacher's union has just filed a 1st Am. suit seeking to overturn Missouri's new Facebook Law.  A copy of the MSTA petition to invalidate the Mo FB law can be found at bit.ly/pOKavy

The MSTA issued the following statement with respect to their suit seeking to overturn Missouri's FB Law: “Many of our members are concerned about the unintended consequences of this law, including their ability to monitor their own children’s online activities,” said MSTA Legal Counsel, Gail McCray. “It's vague and more importantly, we believe it violates the constitutional rights of educators.”

Social Media Law: Who should be drafting your State's laws, (or your Company's policy)?

As social media begins to enter its adolescence it is not surprising that we are beginning to see legislation specifically directed at interaction on social media, the platforms themselves, and their rapidly expanding use in many varying areas of our life. One of those laws which has engendered a wide range of debate is Missouri Senate Bill No. 54 which was unanimously approved by the Senate on April 7, and recently signed into law by Governor Nixon. The legislation will go into effect August 28.  

I've deliberately held off writing about Missouri's new law until now because I was curious to see what the initial reaction would be. Not unexpectedly (although I expect some in the Missouri legislature did not foresee this amount of uproar over what they thought was a child protection bill) this law has proven to be controversial. While I have not spoken to the bill's author, Sen. Jane Cunningham, I have little doubt that her efforts in passing the "Amy Hestir Studen Protection Act" were well meaning. Sen. Cunningham's website touts that she has "fought for this legislation for our children for five years" and that "this legislation is vital to protect our children from sexual predators in our schools" While one could debate whether the law actually serves to accomplish its stated goal(over 75% of child abuse actually occurs at home, not by educators)(2009 Childwelfare Public Fact Sheet ), or whether it potentially stifles the learning environment, I believe Sen. Cunningham's well meaning attempt to protect children may provide a glimpse of the challenges that the future regulation of social media will face.

Initially, it should be stated that the legislative process (and the court system for that matter) is somewhat ill-equipped to handle the rapidly changing world of social media. As Sen. Cunningham's statement indicates, she had been working on this legislation for over five years. At that time, Facebook had been open to the general public for less than a year and Twitter had only recently launched. When she initially envisioned the legislation, Sen. Cunningham could not have hoped to foresee the cultural impact that these services would have.  Laws that attempt to address social media should keep this reality in mind.
In considering the ramifications of Missouri's law, it is helpful to consider the bill itself.  The applicable text of Senate Bill 54 is relatively short and reads as follows:

1. Every school district shall, by January 1, 2012, promulgate a written policy concerning teacher-student communication and employee-student communication.  Such policy shall contain at least the following elements:

(1) Appropriate oral and nonverbal personal communication, which may be combined with or included in any policy on sexual harassment; and 
(2) Appropriate use of electronic media such as text messaging and internet sites for both instructional and personal purposes, with an element concerning use of social networking sites no less stringent than the provisions of subsections 2, 3, and 4 of this section.
 

2. As used in this section, the following terms shall mean:

(1) "Exclusive access", the information on the website is available only to the owner (teacher) and user (student) by mutual explicit consent and where third parties have no access to the information on the website absent an explicit consent agreement with the owner (teacher);

(2) "Former student", any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated;

(3) "Nonwork-related internet site", any internet website or web page used by a teacher primarily for personal purposes and not for educational purposes;

(4) "Work-related internet site", any internet website or web pages used by a teacher for educational purposes.

 3. No teacher shall establish, maintain, or use a work-related internet site unless such site is available to school administrators and the child's legal custodian, physical custodian, or legal guardian.

4. No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student. Nothing in this subsection shall be construed as prohibiting a teacher from establishing a nonwork related internet site, provided the site is used in accordance with this section.

5. Every school district shall, by July 1, 2012, include in its teacher and employee training, a component that provides up-to-date and reliable information on identifying signs of sexual abuse in children and danger signals of potentially abusive relationships between children and adults. The training shall emphasize the importance of mandatory reporting of abuse under section 210.115 including the obligation of mandated reporters to report suspected abuse by other mandated reporters, and how to establish an atmosphere of trust so that students feel their school has concerned adults with whom they feel comfortable discussing matters related to abuse.

RSMo 162.069

While I commend Sen. Cunningham for the bill's recognition that social media policies are an integral part of any organization's social media efforts, I believe that the law should serve as a warning to those of us who practice in the social medial sphere (and also to those who seek to write laws related to social media in the future) that many of our current legislators are not be experienced in social media and may not realize the ultimate ramifications of the laws they propose. 

Social media, chat rooms, blogs, and instant messaging are no longer the realm of tech aficionados and teenagers. These channels now provide a means for efficient, and often enhanced, communication to a broad array of individuals and industries.  From the mass communicative capabilities of Twitter to the relatively focused "circles" available at Google+, social media has the potential to provide heretofore unknown educational and commercial opportunities.  Laws that ban and/or strictly limit the use of social media serve to stifle those opportunities. 

While defenders of this law have stated that its intent is not to prohibit the use of Facebook by educators, its seemingly broad, and under defined terms will likely serve to have that effect.  By proclaiming that no teacher shall use an internet site unless such sight is available to school administrators and legal guardians, and that no teacher shall use a nonwork related site which allows exclusive access with a student, by its express terms, the law appears to foreclose many social media applications.  Almost all sites "allow" exclusive communications, whether by direct message, chat, or other means.  Without further clarification, the law as currently written, will likely deter many educators from taking advantage of social media's potentially enormous educational value.

Those who regularly participate in social media understand the benefits that it can provide, some of which we are only now beginning to appreciate. Companies are using social media to interact with their customers through forms of direct marketing and advertising which was previously impossible.  Educators (when not stifled by overly restrictive laws) are forming collaborative groups both with other teachers and also with students which allow all to interact in real time in on-line after-class discussions.  Customers are able to provide direct feedback, and receive personalized responses.  Students have (or had) the opportunity to ask that question (that they were afraid to ask in class) through a medium in which they were more comfortable.  When drafting laws, or social media policies, the vast potential of social media should be considered just as thoroughly as any potential pitfalls.  

Because these areas are rapidly changing, and because legislators, or those drafting policies for your organization, may not be as familiar with social media, it is vitally important to engage those fluent in the medium when drafting rules that will effect social media.  Include members of your marketing, advertising, and public relations staff in your discussions, and be sure to seek out members of your organization that are active, both personally and professionally, on social media.  These are the people who will understand the actual ramifications of the policies that your are proposing and may also be able to provide you with more efficient and effective means to accomplish your goals without stifling social media's benefits.  If the people who are writing your policies, (or your State's legislation) aren't actively engaged in social media, they may not see the potential benefits that overly restrictive policies can preclude.

Let me know what you think.
Craig Moore

So you have a social media policy....Now what?

So your company has a Facebook page, Twitter feed, and even a YouTube channel...your employees, (and customers) are using social media and you recognize that it has important long term implications to your business. Hoping to stay ahead of the curve and avoid problems that you might not even know exist, you decide that you need a social media policy.  In drafting your policy, you work with counsel to draft a tailored policy that addresses your company's specific market, sales force, and culture.  In short, you've done everything you're supposed to do and you think you are ahead of the game in protecting your company.

Now what?

Unfortunately, simply having a well crafted social media policy does not solve all your potential social media problems.  In fact, while you've made a good start, you are really just half way there. Without training, even the best crafted and perfectly tailored social media policy will not be as effective as it could be.  Much like a bike that you never learn to ride, even the best policy will not protect you if it is not implemented effectively.

In implementing and training upon your social media policy there are many different aspects to consider.

Initially, it can be helpful to provide some very basic use and privacy setting training, not only for your staff that will be using social media on your behalf, but for your entire company.  Often instances of inappropriate, embarrassing, or actionable social media mishaps occur when people accidentally post something in the wrong area or send a message to the wrong person, or inadvertently share a post with the world which is meant only for a select few.  Making sure that your employees are trained and understand the basic privacy settings of social media sites, and also that they understand how their posts can and will be viewed by others (both their social media friends, and the public at large) is a great first step in protecting your people, and your business.

Next, it may also be helpful to provide specialized training to different segments of your work force.  While it may not be necessary to make sure that all of your support staff or manufacturing lines are versed in the latest aspects of FTC communication guidelines, you may want to make sure that your marketing, sales, and social media team know how traditional advertising, marketing, and sales laws are being applied to social media and what the pitfalls are that may be particularly applicable to your industry.  Similarly, while upper management may or may not need to be reminded not to post things which could place the company in an unflattering light, they may need to be reminded how even seemingly innocent statements (e.g. "Earnings are coming out this week and we're all so excited") could implicate SEC rules or how statements to or communications with competitors could raise suspicion in certain circumstances (e.g. antitrust or unfair trade practices).  It is good to remember that everyone at your company, from the night janitor to the C.E.O., has the potential to be a representative of your company via social media...its always best to train accordingly.

Finally, another important aspect of social media training that is often overlooked is reminding employees how policies or agreements already in place can be effected by social media. Agreements relating to non-compete and non-solicit provisions of employment agreements are often potentially implicated by an employee's use of social media, both while employed at your company and after separation.  If you have properly trained your employees on your expectations and their responsibilities under the policy, not only will you hopefully avoid inadvertent missteps, but you may also provide yourself with valuable ammunition if faced with a former employee who is feigning ignorance of the implications of the technology in a court battle.  If you can establish that former employees were trained on what would violate these agreements before such a violation ever occurs, it may prove invaluable.  Similarly, efforts to ensure that trade secret and confidential customer information remains protected by providing your employees the means to understand how to do so on social media serve not only to protect you now, but also if that information ever comes into question in the future. 

While these general suggestions cannot hope to detail every potentially necessary or advisable aspect of social media training for your company, I do hope they provide a window into the areas where you can start.

Let me know what you think.


(TWISML PS:  Happy Father's day to all the Dads out there this weekend, and a special personal thank you to my Dad, Frank Moore.  After having three children of my own I know that there can be no greater gift to a father than to see his kids happy...Dad, I just wanted to let you know that I am, and that I couldn't have asked for a better Dad.  Happy Father's Day.)

Just because its "ok", doesn't make it legal.

In reviewing the social media legal headlines over the past few weeks (sorry for the week long hiatus, my oldest son is "graduating" from kindergarten and end of year festivities have been never ending...I'll try hard to meet my weekly deadline but things like that will always take precedence) I am reminded of an old maxim of my Grandmother's: "Just because its legal, doesn't make it right." 

While this was not one of her favorites (those were usually reserved for things that were "colder than..." "battier than..." or "crookeder than...") it was one that I, as an aspiring attorney, tended to hear quite often.  This rang true even more so once I entered law school and would attempt to explain to her the differences between what you "knew" and what you "could prove." What you "could prove" never mattered much to Grandma, she was always concerned more with what "was right."  Interestingly, my experience with the jury system has born out that her idea of what was "right" was much closer to what a jury is concerned with than what my law school professors had to say about what you could prove...but that's a different blog.

Earlier this month, Facebook updated its promotional guidelines (Facebook Promotional Guidelines) to remove its blanket prohibitions on promotions for tobacco, dairy, gambling, firearms, prescription drugs, and gasoline. In addition, marketers may also now require purchase for entry and target those below age 18 or that live in previously restricted countries. 

These changes have obvious implications for those brands that were previously prohibited from promoting their products via the world's largest social network, and likely has my friends in the marketing industry salivating over the opportunity to expand their client's influence and engagement in this arena.  However, to paraphrase Grandma..."Just because its alright with Facebook, doesn't make it legal."

Companies and brand managers, as well as marketing and advertising professionals, should remember that the availability of this new arena does not necessarily make sweepstakes and promotions for these (or any other type of products) necessarily "legal" just because Facebook doesn't prohibit them.  Instead, what these changes mean is that Facebook will no longer attempt to be the arbiter of these issues.  While these promotions may now be "alright" with Facebook, companies hoping to take advantage of this new opportunity must remember that Facebook's members are worldwide, and the catchy promotion, or amazing sweepstakes that you are rolling out may not be as acceptable under the laws of certain jurisdictions. 

While your gaming, tobacco, or firearm promotion may be perfectly acceptable, and completely compliant under the laws of Missouri (or whichever jurisdiction you reside) it may not be under the laws of Utah, California, Saudi Arabia, or China.  Depending upon where your target market resides, and the size of your national or international operations, the laws of these jurisdictions must also be considered if you hope to avoid potential legal issues.  (Additionally, this is yet another reminder how easily international legal issues can arise through the use of social media....while you may have never considered doing business in the UAE or the Ukraine, social media has the potential to take your company just one click away from these jurisdictions....it is important to consider the ramifications).

The implications of these changes reiterate the importance of coordinating your marketing and legal departments.  While marketing may (rightfully) be seeking to expand your business into social media in an attempt to take advantage of the unique opportunities that the medium provides, and legal may (also rightfully) be concerned about the relatively unplowed social media landscape, these departments can co-exist.  Having your legal and marketing teams on the same page, with each group understanding the benefits, and concerns that each of them see in social media is vital to your success in this rapidly growing arena.  If you haven't yet, its time to make sure that they are all on the same page.

Let me know what you think.  

P.S.  I want to take a second and send thoughts and prayers out to my friends in the Joplin, Missouri area.  The storms that have devastated that region are simply indescribable and nothing that anyone can say can really do anything to take away the devastation.  Be safe, and know that we are with you.