the federal government and social media: agencies are...
TRANSCRIPT
Elizabeth D. Hochberg, LLM Office of General Counsel
@SheofDC
The Federal Government
and Social Media:
Agencies are
Doing WHAT???
U.S. General Services Administration
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What is Social Media? And Gov 2.0?
• Social Media = anything online
other than static content where the
provider posts and the viewer
absorbs.
• Gov 2.0 = government use of social
media.
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Why Use Gov 2.0 Tools?
• Mission, mission, mission.
• It’s what the President wants.
• It’s where the people are:
– 2,000,000,000+ daily YouTube views
– 800,000,000+ active Facebook users
• Early warning system.
• Chance to hear what others are saying.
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Gov 2.0: a New Legal Supercell.
Open
Government
Strategic
Branding
IT Security
Gov 2.0
Citizen
Engagement
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The roadblock isn’t a technological one.
• IT security, privacy, federal records – these are no longer impediments to federal agency use of Gov 2.0.
• Are there roadblocks? Of course. But they are in a myriad of legal areas, most of which are surmountable.
• The challenge is often generational.
Generations and Cell Phones
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* Pew study, 2010
Millennials
Gen X
Boomers
Traditionalists
83%
68%
50%
20%
% Who have slept with their phones nearby
Which tools are the most popular?
• The three services with the most instances
across the federal government were (as of
Oct. 2011):
»Facebook: 3,000+
»YouTube: 450+
»Flickr: 378
• Twitter will soon outpace all of them, with
GSA alone having 23 different accounts.
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Laws. So many laws.
• Federal Appropriation Laws
• Federal Acquisition Regulation
• Antideficiency Act
• Federal Records Act
• Presidential Records Act
• Copyright & Lanham Acts
• Bayh-Dole Technology Transfer Act
• Procurement Integrity Act
• Hatch Act
• Privacy Act
• Paperwork Reduction Act
• Freedom of Information Act
• US Rehabilitation Act §508
• Federal Advisory Committee Act
• COPPA
Let’s not forget THE FIRST AMENDMENT.
Provisions to be “Federalized”
• Indemnification – violates restrictions of the Anti-
Deficiency Act, 31 U.S.C. 1341(a)(1) and the
Adequacy of Appropriations Act, 41 U.S.C. 11.
• Governing Law, Jurisdiction – U.S, as sovereign, is
controlled by federal, not state, law. Litigation
involving U.S. is heard in federal, not state, courts. 28
U.S.C. 1346, 1491.
• Arbitration – Federal agency may use binding
arbitration only if agency head has promulgated
guidance via admin rulemaking. 5 U.S.C. 575
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Additional Items for Negotiation
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• Current Model Template contains 23 provisions, e.g.:
• Advertisements
• No endorsement
• Security
• Federal Records
• Modification of content
• Use of crawlers
• No cost agreement
• Assignment
• Precedence
• Availability of Amended
TOS – online posting
• Ownership of names
The FAR applies to social media.
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• If appropriated funds are used for a new social
media app, the app is government property. Like a
computer or a desk chair.
• What if the vendor instead wants to give the Gov 2.0
app to the government for free? It’s a gift.
• Involve your legal team for a determination of how
the gift may be accepted by your agency under your
gift authority – or if you even can at all.
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Apps.gov is here to help you.
Just a few of the 60+ ToS’s on Apps.gov
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NASA’s YouTube Channel
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Isn’t it better to ask forgiveness than permission?
NO. NO IT IS NOT.
Because your name could end up on a letter to
the White House, like this one …
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Appropriation Law Violations go to POTUS
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Twitter is a federal resource.
USGS: earthquakes
FEMA: hurricanes and tornadoes
State Department: Arab Spring
TSA: security pat-downs
CDC: zombie preparedness
• Twitter is a real-time, immediate public engagement and response tool.
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Twitter and the Library of Congress
• Twitter signed donation agreement after swift negotiation.
• Win for Twitter: preservation; validation of cultural importance.
• Win for Library: preserve digital snapshot of our time.
Reaction:
– Library website crashed for 1st time since Starr Report.
– Historians & academics thrilled.
– Magnified concerns regarding privacy once it’s the
Government collecting tweets.
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How does this apply to me?
• Follow your agency on Twitter.
–Follow official agency accounts or sister offices if they have official agency accounts. I guarantee you’ll be surprised with what they are saying.
–You are not necessarily replying or engaging – you are simply watching and learning. And you will learn a LOT.
• I follow clients who have personal accounts. Why? Sometimes I have to save them from themselves.
iPads and Mobile Devices
• DOD now gives classified briefings on
“jailbroken” iPads.
• NASA has 3.6M downloads of its iPad app.
• The Army uses QR codes for training
manuals. They are running 60 apps on 9
platforms.
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Federal Mobile Apps – Some Examples
• GSA: Per Diem app.
• NIH: 6M downloads of their BMI calculator.
• Post Office: buy stamps via app.
• EPA: UV Index
• USDA: Food recalls, and cooking guideline apps.
• IRS: check tax refund via your phone.
• TSA: Can I Bring? And crowdsourcing apps
• State Dept: Safe Traveller app
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The IRS’s Mobile Refund App
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TSA’s Apps
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America COMPETES Act
• The Act authorizes agencies to tap external expertise.
• Agencies may
– Spend up to $50M, and may accept gift funds.
– Empanel advisory committees to select topics for prize
competitions. (Sec. 24(d))
– Appoint judges from the private sector. (Sec. 24(k)(1))
• Section 24(k)(4) exempts from FACA these judging
panels.
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Federal Employees and Gov 2.0
• Maintaining separate and distinct ‘official’ vs. ‘personal’
identities is very difficult in the Gov 2.0 landscape.
• To avoid endorsement problems, if you have an official
government account, only “like” or “follow” other
government pages or officials.
• Don’t use your .gov email address to register unless it’s
for work. Hatch Act violations are always an issue. You
should only register with a private .com account.
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Privacy and Social Media
• Social media is merely repackaged publicly
available information, and users have NO
EXPECTATION OF PRIVACY.
• Even when a user’s profile is purportedly “hidden”
or “Secure” it is NOT.
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HR and Social Media
• There is no case law stating that vetting candidates via
social media platforms is in any way unlawful.
• This is because social media is merely repackaged
publicly available information, and users have no
expectation of privacy.
• Four state courts have held that employers MAY lawfully
terminate employees based upon social media postings –
even those made outside of work.
• Only the NLRB has held otherwise, and has issued two
sets of opinions.
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Due Diligence in Social Media
• Cases are getting thrown out of court when attorneys fail
to properly authenticate into evidence social media
screenshots.
• Judges have begun to expect social media evidence.
• Am I saying that you are failing in your due diligence if
you haven’t done a social media search or review?
Almost. In my line of practice it is essential.
• In all areas of legal practice this is expected to become
an industry standard within 3 years.
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Federal Brands and Social Media.
• Do federal agencies have a duty to protect
their Gov 2.0 brand?
–My answer? Yes.
–Enforcing against infringement is not just
about brand protection – it’s about
citizen/consumer protection.
• Are agencies doing this proactively yet? No.
Most agencies actively ignore this issue.
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Look out for copycat or dummy pages.
• Search for the .com, .net, etc., version of your .gov.
• Look for fake Facebook pages and Twitter accounts.
• They may exist solely to confuse the public or infer
government endorsement.
• Send infringements to legal.
Trademark Valuation in Technology.
Toshiba
Texas
Instruments
Portal Player
Wolfson
Microelectronics
Samsung
Cypress
Semiconductor
Synaptics
Inc.
Sony
Adopted from James G. Conley, Kellogg School of Management
Used by permission.
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Apple 3G iPhone Teardown
Evolution of the iPod and thus TM’s
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+ + + + + +
= Reg. #3,365,816
Filed 07-10-06
Issued 01-08-08
Reg. #3,341,286
Filed 8-10-05
Issued 11-20-07
Reg. #3,341,214
Filed 6-29-05
Registered 11-20-07
The Takeaway
1. Gov 2.0 and the Social Media revolution are not
fads, and they are here to stay.
2. There are a myriad of federal laws governing
agencies’ use of Gov 2.0 – but they are in most
cases surmountable.
3. Be mindful of your personal use of social media
tools – we have extra requirements as feds.
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