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Lessons in Online Good and Evil: First Governments, Then Your Company?

The FBI, with the support of the Obama administration, wants more power to wiretap the Internet and social media web sites in particular. I guess the FBI thinks finding the next John Dillinger is only a few mouse clicks away.

At the same time, the Food & Drug Administration, long under pressure from the pharmaceutical industry to give guidance on what marketing practices are acceptable on the Internet, announced at the end of 2010 that the FDA really doesn’t see social media as a priority, leaving the industry in a state of digital flux after the FDA’s social media attacks in 2009 and 2010.

Never mind that consumers use the Internet and social media as their primary
source for information on drugs and treatments. Meanwhile, the SEC, FTC, DOJ, IRS, and just about every other three-letter word in Washington are cogitating over what benefits and threats lurk amid the programming code of cyberspace. In truth, this debate has been going on for years.

The SEC has long been looking at how the Internet and Fair Disclosure Rules collide. DOJ and the IRS routinely use the Internet to find deadbeats and tax evaders.

In 2009, the omnipresent FTC revised its Endorsement Guides after a nearly two-year reevaluation and suggested bloggers should disclose favors heaped upon them by marketers hoping for some kind words, only to then make it clear in an FAQ that it had no intention of going after bloggers, but may hold those lucky marketers that get positive reviews responsible for a blogger’s undisclosed bias under the new Guides. Congratulations, Mr. Marketer, you’ve been deputized!

Nor has the administration lost sight of the riches that may lie beneath the surface of the Internet with last month’s announcement that the Commerce Department and the White House are reinvigorating the administration’s controversial National Strategy for Trusted Identities in Cyberspace (NSTIC).

The main pillar of the NSTIC is the adoption of unique Internet User IDs for all Americans. Critics fear it in fact erodes privacy as government creeps ever deeper into our conversations (and secrets).

All of this somehow supports the administration’s policy on the government’s use of the Internet, spurred by President Obama’s remarks that the Fed’s use of the Internet should be transparent, participatory and collaborative. Right. Just watch out what you post or tweet. The ever-watchful eyes of Washington are upon you just like George Orwell warned us in his classic Nineteen Eighty-Four, published way back in the analog year 1949. He was just off by a decade or two.

Meanwhile, on the international front, the White House has embraced social media as a foreign policy tool. Witness the president’s press secretary’s tweet in the middle of the revolution in Egypt “Very concerned about violence in Egypt; government must respect the rights of the Egyptian people & turn on social networking and internet”.

I can’t help but wonder what Winston Churchill might have tweeted had he been here to witness the intersection of social media and revolution. Perhaps his oft-cited quote, “Criticism may not be agreeable, but it is necessary. It fulfills the same function as pain in the human body. It calls attention to an unhealthy state of things.” Even Churchill had a talent for opining in (almost) 140 characters or less!

Of course Congress (remember them?) is knee-deep in Internet quicksand as it holds hearings and proposes legislation while it tries to figure out what to do about online challenges surrounding privacy, behavioral targeting, gambling, pornography, violence, taxation, and much, much more. But the truth is Congress is so deeply mired in other issues that it will never find the time to focus on the most important communications platform since mankind was given the gift of speech. Congressional politics as usual.

But it is refreshing to see that Sen. Joe Lieberman, sponsor of the Cybersecurity and Internet Freedom Act, believes neither the president nor any federal agency should have the power to shut down the Internet in a national emergency in desperation, as Hosni Mubarak tried to do in Egypt. No kill switch. Just the right to nibble the Internet to death.

Where does all of this leave legal counsel for companies with operations strewn all over the world and an ever-increasing dependence on the Internet and social media for communications and profits? While it’s hard to say, there are a few proactive moves worth considering:

Check your business interruption insurance policy to see if it covers Internet shutdowns, including those backed by a government or caused by civil unrest. Consult with the new breed of cybersecurity wonks and have them do an audit of your systems infrastructure for dealing with the Internet and crisis management. Read the policies of the key social media platforms to see what your company is risking when interacting on line. Just go to Facebook, LinkedIn, YouTube and Twitter and click on the “Terms,” “User Agreement,” and “Privacy Policy” links at the bottom of the page, where they often seem to be so conveniently buried. Review your internal social media policies to be certain they address corporate concerns in an understandable manner and are not filled with legalese and unrealistic hopes and dreams. Be practical. Educate your company’s employees about the risks that companies and their employees face when they interact on social media. It’s one thing to have a social media policy (most of which remain unread by employees) but far better to engage in a conversation with employees.

Remember face-to-face conversations? Appreciate that the distances between the risks and rewards of the Internet are more vast, and starker than anything we’ve seen before. If for that reason alone, the legal and information technology departments at every corporation need to partner like never before, and most of all in order to find a common language and approach. Only by attending to this interrelationship can you hope for success rather than chaos.Engage with your company’s or industry’s political action groups to help them provide perspective to the many regulatory agencies that are so ill-equipped to understand that even well-intentioned legislation or rules may have unintended consequences that will do more harm than good to consumers. Talk to your chief marketing officer and learn what the company is doing on social media platforms. See who’s talking for the company, what they’re saying, and how they’re responding to consumers. You may very well get an unpleasant surprise.

Social media isn’t going to get any easier to control, and no one can realistically turn it off for long. Not even a government. So it’s crucial for corporate counsel to be well ahead of the curve and stay connected both on and offline.

Doug Wood – We Expert

Reprinted from Corporate Counsel,

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