Earlier this year, at least one Michigan school district has joined a class action lawsuit against the social media application TikTok, its parent company, ByteDance, Inc., and other social media companies. The suit alleges that the social media conglomerates are deploying algorithms designed to create a connectivity addiction to social media sites like Tik Tok, Snapchat, Instagram, Meta, YouTube, Google, and others. 

The lawsuit alleges that the addictive algorithms are causing a mental health crisis among adolescents across the country. The suit points to a string of suicides that seemed to be correlated to the decedent student's participation and use of various social media sites. 

Here is a copy of the Master Complaint; the very first allegation contained therein states: American children are suffering an unprecendented mental health crisis fueled by Defendants' addictive and dangerous social media products. There is an impressive -and growing- roster of law firms representing the various school district plaintiffs from across the nation.

While the class action suit originated in federal court in Seattle, it has now been transferred to the Northern District of California. The multi-district litigation bears the following case caption: In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation [MDL No. 3047] 

The tort theory alleged in the case is that the social media platforms are defective to the extent that they are designed to maximize screen time. For adolescents, plaintiffs allege that this flawed design has a high potential to become addicting. The suit alleges that the addicting behavior can lead to various mental and physical harm, including death.

This phenomenon, as it pertains to adults, was detailed in the 2020 documentary The Social Dillemma. To the extent that children are perceived to be the targets of these social media companies, there will be waves of litigation to come. [Think of Joe Camel's extinction in the late 1990s.]

So far this year, the following school districts have joined the litigation:

• Cadillac Area Public Schools
• Dexter Community Schools
• Elkhart Community Schools
• Penn-Harris-Madison School Corporation
• School City of Mishawaka 
• Clarksville-Montgomery County Schools
• Concord Public Schools
• Seattle Public Schools

Surely, more school districts will join the class action law suit in the months to come. More districts from Michigan are expected to join the suit as well.

This multi-district litigation will go on for years; the stakes are high for the various communities and the social media companies. A structured settlement could cost billions of dollars. 

Jennifer Brown, the superintendent for the Cadillac Area Public Schools had this to say about her district joining the class action lawsuit:

We are seeing increases in mental health struggles with our students - anxiety, depression - and it's no secret that the research supports a direct correlation to some of the mental health challenges that we're seeing as a consequence of social media use and technology access within our youth. It is going to take a community to care enough about kids to see that the negative impacts really require more management and regulation so that kids can be kids.

We have all seen how children are drawn like gravity to the apps on a cell phone. They do not need much enticement to interact with social media; once there, most children exhibit difficulty putting the phone down. 

Earlier this year, Seattle Public Schools filed a complaint against TikTok and Snapchat asserting that those and other social media platforms purposely deliver content that is mentally and physically harmful to students. They specifically cited to the "corpse bride" diet and other harmful but viral weight-loss challenges.

Last month in NYC, state attorney general Letitia James and prosecutors from 30 other states -including Michigan Attorney General Dana Nessel- sued Meta alleging that Facebook and Instagram featured content that was addicting to children. The complaint asserts that the business model for both platforms exploits young users by deploying harmful and manipulative features designed to maximize their time and attention on the site for profit. Here is a link to the complaint; also filed in federal court in the Northern District of California. 

For their part, the social media companies, asserting a content ban, have filed motions for summary judment based on First Amendment protections. The federal judge assigned to the case found that suit is more subtle than an outright content ban. The judge denied the defendants' initial dispositive motion, holding that the plaintiffs were more concerned about the technical algorithm, not the content. 

Rather than banning specific content, the plaintiffs sought greater parental controls, easier ways to delete accounts, better age verification procedures, and the elimination of notification clustering designed to ramp up habitual use. On the heels of this law suit, many state legislatures are drafting laws proscribing certain types of emotionally disruptive content from young users.  

The Law Blogger will continue to monitor this interesting and important litigation and legislation and alert our readres to significant developments in the cases and the laws.

 Post #636

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If you are serving as a juror these days, you need to know that lawyers are snooping around your social media profile before you even step foot into a courtroom. Is this an invasion of privacy, or simply due diligence on the part of the lawyer?

The practice of lawyers researching the social media profiles of prospective jurors is being examined by judges conducting trials in both state and federal courts, as well as by the American Bar Association. In 2014, the ABA issued a statement that lawyers can and should conduct due diligence for their clients heading to trial by researching jurors' profiles.

This practice received much attention in a recent jury trial in federal court that pitted Google against Oracle. In the lead up to the trial, it came to the federal judge's attention that the big-time lawyers were conducting mining operations on the prospective jurors.

The judge in this case, with jurors' privacy rights in mind, required that the lawyers in the case inform him of the scope of their juror research. He further ordered that if the scope of the jury research included their social media platforms, the jurors were to be offered the opportunity to adjust their privacy setting in advance of the lawyers' scrutiny.

When a case heads to a jury trial, jurors are summoned to the court well in advance of the trial date with a notice and a questionnaire they must complete regarding basic data such as their employment, marital status and prior involvement with the court system. This information, along with their address, is accessible to the attorneys involved in the case.

A lot can be learned about a person if this data is used for further personal research. Social media, in particular, is a veritable goldmine of public information that is useful to gleaning how a juror may view a particular case.

Some lawyers, however, go too far and attempt to "connect" or "friend" the person on social media in order to delve deeper into their electronic profile. This practice has been disavowed by the ABA, and gives lawyers a bad name if you were to ask us here at the Law Blogger.

Various state High Courts have began to weigh in on the issue. The Kentucky Supreme Court, for example, overturned a murder conviction on the basis that the victim's mother was Facebook friends with one of the jurors.

Social media users should keep in mind that their posts are not private. There are lawyers lurking about, apparently mining your data as soon as you are summoned for jury duty.

Post #553

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After 4-months of proofs, the capital murder case against Jodi Arias has [finally] been submitted to the jury for deliberation and a verdict.  Although the murder of Travis Alexander occurred in 2008, the jury was not empaneled until January 2, 2013.

In an interesting preliminary decision, the presiding judge elected not to sequester the jury.  This means that, although they were provided with a daily admonishment not to discuss the case with anyone outside the courthouse, jurors were left to their own devices when faced with the saturation-media coverage of this trial.

We here at the Law Blogger have posted on the topic of social media and the jury pool, and the problems presented by jurors that seek information about their case outside the courtroom.  In such high-profile cases, the jurors realize they are a part of our lurid true-crime history. 

These folks thus become high-profile jurors.  Many hire attorneys or agents after the trial to discuss lucrative media appearances; even book deals. 

Being in the profession of defending the accused, we wonder over here at the Law Blogger how many of the jurors assigned to this case have succumbed to the temptation of tuning into the media coverage of their case.  How many jurors have Googled some of the witnesses, particularly the experts, that testified in this case?

If any such forays come to light [and let's not forget that every Internet user's keystroke is recorded] this defendant will have at least one good appellate issue.  In our opinion, Judge Sherry Stephens should have sequestered this jury or at least obtained their known IP addresses, and she should have concluded the trial in February, not May.

Such cases give our media-rich culture the opportunity to marinate in the art of lawyering.  Some camps favor the prosecutor; others relish the art of defending the accused.

One thing is for sure -these high profile murder trials cement our collective national fixation with sex, religion and violence.  Not that each of us are latent dysfunctional bi-polar borderline personality stalkers.  Yet, as a nation, we just love the spectacle of the public trial; especially a capital murder trial.  Such trials have taken the place of a public execution in the town square.

Even with an inevitable jury conviction of some degree of homicide, unfortunately Ms. Arias will be with us for decades.  We here at this blog can already see the appeals beginning to form...

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If you have a child under 25 that is technologically oriented, wired, so to speak, I bet they have a Reddit account.  You know, Reddit; the social media Q&A site that we here at the Law Blogger find to be somewhat exasperating and, well, just hyper.

If you're wrong, or wrong-headed, on Reddit, you'll be slashed to the quick and run off the site.  My high school underclassman son swears by Reddit.  He trusts the site, and uses it to answer questions on a wide range of pre-selected "interests".  I must admit, although a late adopter myself [I rarely make it into my Reddit profile...], it caught my eye when an unemployed law school graduate asked President Obama a question when the President participated in an AMA ["Ask Me Anything"] session.

Here is the question:

I am recent law school graduate. Despite graduating from a top school, I find myself unemployed with a large student loan debt burden. While I'm sure my immediate prospects will improve in time, it's difficult to be optimistic about the future knowing that my ability to live a productive life -- to have a fulfilling career, to buy a house, to someday raise a family -- is hampered by my debt and the bleak economic outlook for young people. I know that I'm not alone in feeling this way. Many of us are demoralized. Your 2008 campaign was successful in large part due to the efforts of younger demographics. We worked for you, we campaigned for you, and we turned out in record numbers to vote for you. What can I say to encourage those in similar situations as I am to show up again in November? What hope can you offer us for your second term?

 Here is President Obama's answer:

I am Barack Obama, President of the United States -- AMA by PresidentObamain IAmA

[–]PresidentObama[S] 2002 points 9 days ago
I understand how tough it is out there for recent grads. You're right - your long term prospects are great, but that doesn't help in the short term. Obviously some of the steps we have taken already help young people at the start of their careers. Because of the health care bill, you can stay on your parent's plan until you're twenty six. Because of our student loan bill, we are lowering the debt burdens that young people have to carry. But the key for your future, and all our futures, is an economy that is growing and creating solid middle class jobs - and that's why the choice in this election is so important. The other party has two ideas for growth - more taxs cuts for the wealthy (paid for by raising tax burdens on the middle class and gutting investments like education) and getting rid of regulations we've put in place to control the excesses on wall street and help consumers. These ideas have been tried, they didnt work, and will make the economy worse. I want to keep promoting advanced manufacturing that will bring jobs back to America, promote all-American energy sources (including wind and solar), keep investing in education and make college more affordable, rebuild our infrastructure, invest in science, and reduce our deficit in a balanced way with prudent spending cuts and higher taxes on folks making more than $250,000/year. I don't promise that this will solve all our immediate economic challenges, but my plans will lay the foundation for long term growth for your generation, and for generations to follow. So don't be discouraged - we didn't get into this fix overnight, and we won't get out overnight, but we are making progress and with your help will make more.

The "we're all in this together" plank of the Democratic Party is evident in this exchange with the Commander in Chief.  But what's up with the wind and solar power references?  These industries are on par with our legions of unemployed attorneys.  Overcapitalized for their current output; little to none.

Well, we here at the Law Blogger do subscribe to the positive outlook.  And we do take note that a sitting U.S. President spent a moment on a very forward social media platform connecting, briefly, with a random stream of computer users.

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This just in.  Illinois joins Maryland and Delaware to pass a law protecting the social media privacy of individuals from prospective employers.

Michigan also has a similar bill under consideration known as the Social Network Account Privacy Act.  The general concept of these laws is to proscribe employers or educational institutions from requiring prospects to provide account access data such as passwords or log-in information.

Many of these prospective employers are law enforcement agencies, perhaps looking to see whether their recruits have any gang connections.  Other employers seek inappropriate photos are company disparaging remarks.

This practice is widely regarded as a breach of privacy.  Further, it is a breach of the operating agreement for most sites to share a password.  While the Justice Department considers the practice of entering a social media site in violation of the site's agreement to be a federal crime; albeit, the JOD has admitted in recent congressional testimony that such crimes will, for now, go un-prosecuted.

These laws are considered by legal experts to be both pro-business and pro-privacy.  The benefits to our ever-eroding privacy are obvious.  As for business, such legislation relieves a company or educational institution from the duty of monitoring protected digital content.

We will monitor the bill currently pending in the House Committee on Energy and Technology.

www.clarkstonlegal.com

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This Thursday, I will be presenting in Seattle, WA to a group of lawyers from around the country on the topic of social media.  Not considering myself an expert in the field, I was surprised to get the invitation to join an esteemed panel.

Here's the catch; the good folks at Avvo.com, a website designed to interface consumers of legal [and health care] services with the providers of those services, wanted a panel made of practicing attorneys; not just the usual "social media marketing" consultants.

Lawyers are not just dabbling in social media these days.  For most, getting connected and developing a robust electronic profile is now a "catch-up" exercise.

So I will be addressing conference attendees on how, as a busy practicing attorney, I have utilized social media in my law practice.  Along with the other panelists from around the country, I will be sharing my experience with utilizing social media to get our law firm message out to our target  audience.

Thanks, in part, to the followers of this blog, I can point to sustained search results placing us near the top of hyper-local searches for legal services in Northern Oakland County.

As a preview to this presentation, I was interviewed by Colin O'Keefe [from the Seattle area] of LXBN TV.  Here is a link to Colin's interview.

www.clarkstonlegal.com

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With Lynn Krauss, President
Midland County Bar Association

Over the past several years, I have had the opportunity to address various bar organizations and industry groups on the topics of marketing and legal issues emerging within the social media context.  Lately, my bookings for such presentations have increased.

Lawyers now want to know how to market their wares electronically, and how to avoid the pitfalls.



Yesterday, I presented to the Midland County Bar Association.  They hold their monthly meetings in the spacious, and just-built, clubhouse at the Midland Country Club.

As bar association meetings go, it was a well-attended event.  The MCBA's Treasurer, Eric Larsen, attributed this to the topic he arranged: social medial marketing for lawyers.  Of the nearly 40 attendees, there was an even mix of general practitioners and Dow corporate attorneys.

The discussion focused on how to stay abreast of the constant wave of information; how to manage that information; and how to disseminate select portions of that information for a lawyer's prospects.  Hyper-local marketing was explained.  Tips were imparted on how to rise above the ever-present clutter that always seems to accompany search engine results.

The message in Midland was consistent with my other presentations: to get noticed on the Internet [i.e. Google, Yahoo, YouTube], lawyers marketing on the web need to frequently post relevant content that your target audience will find useful.

Now doing that, while managing a law firm, and actually practicing law, that is the challenge for the modern general practitioner.  More and more, lawyers and catching on to the social media wave.  For many, the good ole "yellow pages" ad is a distant memory.

Upcoming presentations on these topics will include a webinar sponsored by Thompson-West on Thursday, 02/23/2012, at 11:00 am EST.  Also, I will be on a panel of other practicing attorneys at the "Avvocating 2012" seminar in Seattle, WA in May.

Stay tuned as this is an ever-evolving topic.

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On Friday, I presented on the topic of social media in the family law context to 500 Michigan lawyers attending ICLE's 10th Annual Family Law Institute at the Inn at St. John's in Plymouth, MI.

Part of the presentation dealt with the national and local "influencers" in the area of social media and the law; particularly family law.  Some of the more dynamic profiles of attorneys utilizing the social media were  profiled and discussed.

Lawyers are utilizing sites like Google+, YouTube, Linked In and Facebook to promote their content, expertise and profile.  Law-related sites such as JD Supra, Nolo, and Avvo were also profiled.

The second half of the presentation touched on issues of privacy and the expectation of privacy, or lack thereof.  The top social media sites referenced above install pieces of tracking software onto users computers.  The WSJ shined a bright light on this practice in its 2010 series, "What They Know".

Forensic recovery of electronically stored information (ESI) was one of the areas of primary focus.  Many divorce clients now present with information obtained through a violation of the spouse's privacy rights; the attorney must not accept such evidence.

Other clients destroy evidence or illegally scrub electronic information in transit with key-stroke programs such as the "evidence eliminator" which boasts that not even the FBI could recover scrubbed data.

One focus on whether evidence of bad conduct that may be relevant, or critical, to a custody dispute, is the source of the information.  ESI on a "family" computer has no expectation of privacy and is thus admissible in the family court.

Finally, the presentation surveyed recent litigation and case law arising from evidentiary disputes in family courts.  Some of the cases involved sexting, other cases involved cyber-bullying.

In all, it was a successful presentation made to an interested group of attorneys looking to put it all together in the social media context.

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This post is the original content of Geoff Livingston, a blogger from the Washington D.C. area recognized as a social media and blogging "expert" by the Washington Post.  His 2007 book, Now is Gone was hailed by the WSJ as a valuable resource for those interested in mining social media.

The topics of privacy and intellectual property relative to Facebook are intertwined and receive recurring attention.  Here is Geoff's recent post:

Have you read Facebook’s Statement of Rights and Responsibilities? I decided to after talking to a Facebook IP lawyer. There are some serious dangers for content marketers on Facebook:

“For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”).”

AND

“You will not tag users or send email invitations to non-users without their consent.”

If someone is using content as a means to market to their potential customers, the first statement presents huge issues. It’s clear that protecting IP is hard on Facebook given these terms.

While the same statement offers IP protections, Facebook is clearly soft on enforcement. Basically, for someone to get in trouble for using your copyrighted content without your permission, it requires someone to “repeatedly infringe” for Facebook to take action.

All in all, your content is not safe on Facebook, IMO. It’s best to use secondary services such as a blog, a video site or a photo site, and link back in if protecting copyright is an issue.

On the tagging front, I was particularly interested as this is a common form of marketing wares on Facebook, one I often interpret to be spam. Apparently, if you tag someone in a manner that they do not approve, it REALLY IS spam.

Reading the same policy, “You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.” Facebook has demonstrated it is adamant about policing spammers on its network. It is actively prosecuting abusers of its spamming policy and suing them.

In essence, if you use tags with your content or posts to market your services, you are spamming people. No ifs or ands about it. If the people who are being tagged decide to report you, it’s likely that you will find little leniency from Facebook.

The lesson for content marketers, don’t hard sell on Facebook. Tagging should be soft, clearly benefiting the community members mentioned. Otherwise it’s best to try other social network services to achieve your goals.

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