Internet Archives - Page 12 of 14 - The National Law Forum

Common Social Media Profile Picture Mistakes

How you present yourself on social media can either draw clients to you, or send them packing.

What’s the first thing you notice about someone’s social media account? Their profile picture. There are over 645 million active Twitter users, 829 active daily users on Facebook, and over 200 million users on Instagram. Profile pictures are the first thing any of these users will see when your account is searched or suggested on social platforms, so it is vital that your picture send the right message.

Do’s and Don’ts of social media profile pictures:

DON’T make yourself so far away that the person has to play a strategic game of “Where’s Waldo” just to identify you.

DON’T filter your picture so heavily so that the viewer can’t even imagine what the original looked like.

DON’T pose like you’re on the cover of a magazine. There is a time and a place for glamour shots, but your professional profile is not it.

DON’T set your profile image as a picture of you and your spouse. Marriage is a beautiful thing, but this is your profile, not yours and your significant other’s.

DON’T make your profile picture your firm’s logo. While it is important to gain exposure for your firm, your profile picture isn’t the ideal place to do so. A profile picture should personalize you as an attorney. You can, however, put something like a logo as your cover photo so that it is the background to your profile image.

DON’T leave your image as the default, such as the signature Twitter egg. Doing this will not only look impersonal, but also come off like you didn’t care enough to put in the effort to change the photo.

DO follow these guidelines for profile pictures:

Crop the picture so it is an up-close, professional shot of your face.
Make sure it is well-lit and that you’re looking directly at the camera.
Smile! This can showcase how personable you are and also be inviting to the people who see it.
Don’t have anything directly behind you; it is ideal to have professional head shots in front of a green screen.
Your profile picture needs to be large enough that it can be recognized without actually having to click on the image. Be mindful of general size requirements across social media networks.

ARTICLE BY

Samantha Hicks

Consultwebs.com, Inc.

How to Build Trust Online by Being Human

All you have to do is troll your own Facebook or LinkedIn account to know that there is LOTS of content online.

In fact, a recent post at Buffer.com noted that more content is published every day on Facebook than is found in every book published in human history!

So how do you stand out from that enormous crowd and earn the trust you need to succeed with your social media marketing program? Buffer provides these tips:

Use personal pronouns. Using personal pronouns in your posts — I, we, you, me, etc. — and being more conversational elicits empathy from an audience, getting you a better response.

Use simple words. By using simple words, you can convey your idea in a way that people don’t have to think about before understanding it. Big words and legalese will tend to alienate people, not draw them in.

Use stories. Since the beginning of time, humans have communicated by telling stories and the propensity to listen to a story is ingrained in our DNA. A Buffer study showed that adding a story to your blog post can increase readership by 300%.

Use contemporary culture references. Weaving a pop culture reference or two into your post, especially if you’re able to add a celebrity name or two like Beyoncéor George Clooney (see how I did that?), helps boost readership and interest.

Use the Shaq Rule. Shaquille O’Neal is a social media powerhouse, with a Twitter following of 8.5 million and 4.7 million Facebook fans. His rule for posting is that 80% of his posts must be entertaining, 15% must be informative and only 5% should sell something. People can sniff out a sales pitch online immediately, and just as quickly they are on to the next thing.

ARTICLE BY

Morgan Kennedy

Covington & Burling LLP

Generic Top Level Domains – Current Sunrise Periods Open – August 2014 Update

As first reported in our December 2013 newsletter, the first new generic top-level domains (gTLDs, the group of letters after the “dot” in a domain name) have launched their “Sunrise” registration periods. Please see our December 2013 newsletter for information as to what the Sunrise Period is, and how to become eligible to register a domain name under one of the new gTLDs during this period.

As of the date of this newsletter, Sunrise periods are open for the following new gTLDs:

.dental

.surgery

.hiphop

.audio

.yokohama

.juegos

.fund

.cash

.tax

.investments

.bio

.desi

.furniture

.discount

.fitness

.schule

.gratis

.website

.creditcard

.claims

.press

.host

.global

.okinawa

.xn—io0a7i (网络 – Chinese for “network”)

.xn—55qx5d (公司 – Chinese for “company”)

.reise

.bayern

.durban

.joburg

.capetown

.accountants

.digital

.finance

.insure

.ren

.xn—cg4bki (삼성 – Koreanfor “Samsung/Samseong”)

.republican

.guide

.loans

.church

.life

.surf

.beer

.hamburg

.scot

.place

.direct

.saarland

.hiv

.deals

.BLACK

.soy

.city

.attorney

.lawyer

.melbourne

ICANN maintains an up-to-date list of all open Sunrise periods here. This list also provides the closing date of the Sunrise period. We will endeavor to provide information regarding new gTLD launches via this monthly newsletter, but please refer to the list on ICANN’s website for the most up-to-date information – as the list of approved/launched domains can change daily.

Because new gTLD options will be coming on the market over the next year, brand owners should review the list of new gTLDs (a full list can be found here) to identify those that are of interest.

ARTICLE BY

Tracy-Gene G. Durkin

Julie D. Shirk

Monica Riva Talley

OF:

Sterne, Kessler, Goldstein & Fox P.L.L.C

Making Use of Social Media: FDA Releases Two Draft Guidelines on the Use of Social Media Platforms by Drug and Device Manufacturers

The Food and Drug Administration (FDA) has released two long-awaited draft guidance documents for the drug and device industries revolving around the use of social media platforms by drug and device manufacturers — Internet/Social Media Platforms: Correcting Independent Third Party Misinformation About Prescription Drugs and Medical Devices (“Guidance on Correcting Third Party Misinterpretation”), and Internet/Social Media Platforms with Character Space Limitations – Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices (“Guidance on Presenting Risk/Benefit Information”).

As the titles suggest, the purpose of the documents is to clarify how social media may be utilized by drug and medical device companies for the voluntary correction of misinformation provided by independent third parties, as well as for presenting promotional messaging regarding risk/benefit information of products. But while the guidelines provide helpful clarification regarding how such platforms may be utilized, they each also raise considerations that companies should take heed of before beginning to use these outlets, and should be factored into a company’s social media guidelines.

Internet/Social Media Platforms: Correcting Independent Third Party Misinformation About Prescription Drugs and Medical Devices

As an initial matter, the Guidance on Correcting Third Party Misinterpretation (“Draft Guidance #1”) establishes two points: first, Draft Guidance #1 only applies to misinformation posted to Internet-based platforms by an independent third party, therefore excluding content provided by the company itself, its employees and agents. Second, Draft Guidance #1 establishes that the exception to a company’s obligation to respond to or correct misinformation only applies to information that is “truly independent,” for example posted by an independent third party to an unaffiliated platform or a platform providing content that is not controlled by the company.

However, Draft Guidance #1 does not completely exclude company-operated sites. In stark contrast with the company’s obligation to correct content when that content is “owned, controlled, created …influenced or affirmatively adopted or endorsed by, or on behalf of, the firm,” where such corrections are obligatory and also carry advertising and labeling regulatory requirements, Draft Guidance #1 does not hold companies responsible for correcting misinformation where a company owns or operates an online platform that allows for user-generated content (chat room, etc.) over which a company does notexert control. However, Draft Guidance #1 cautions that such a site should contain an “overarching and conspicuous statement that the firm did not create or control the [user-generated content].”

If a company chooses to voluntarily respond to truly independent misinformation, Draft Guidance #1 sets parameters on the process for taking correction action, which should either be by (i) providing appropriate truthful corrective information or (ii) providing “a reputable source for correct information, such as the firm’s contact information. In either approach, in order to constitute “appropriate corrective information” a firm’s communication should denote the affiliation of the corrective post with the company, and be:

relevant and responsive to the misinformation;
limited and tailored to the misinformation;
non-promotional in nature, tone, and presentation;
accurate;
consistent with the FDA-required labeling for the product;
supported by sufficient evidence; and
posted either in conjunction with or reference the misinformation.

In acknowledgement of the vast nature of the Internet and certain forums and the reality that it may be impractical for a company to attempt to correct all misinformation about its products that may appear, Draft Guidance #1 stipulates that companies do not need to address all incorrect information that may be posted regarding a particular drug or device, even if a company elects to correct a selective portion. When addressing any misinformation, therefore, Draft Guidance #1 recommends that a company create a figurative box around the particular misinformation and portion of the forum it intends to correct, and then revise all the incorrect information within that defined boundary, which should include also correcting positive misinformation or exaggerations. Following corrective action, while Draft Guidance #1 does not hold companies responsible for monitoring the communication, it does recommend that companies keep records that include (i) the date, location, and content of the misinformation; (ii) when the wrongful information was discovered; and (iii) a description of the corrective information provided, including the date it was furnished.

Finally, Draft Guidance #1 suggests that the FDA does not intend to object if a firm voluntarily corrects misinformation and the voluntarily provided corrective information does not satisfy otherwise applicable regulatory labeling or advertising requirements, so long as the corrective information is not non-truthful, misleading, or in a manner other than recommended by Draft Guidance #1. However, companies should take heed that any corrective action that goes beyond merely providing accurate information that is specifically tailored to the misinformation it is addressing (i.e., including slogans or promotional information) must comply with applicable regulatory requirements related to labeling or advertising.

While helpful for establishing clearly both the parameters for correctly responding to misinformation as well as for clearly limiting a company’s obligation to respond to any or all misinformation posted by an independent third party, the Guidance on Correcting Third Party Misinterpretation also reminds companies to take caution when doing so to ensure that their responses are narrowly tailored enough to fall under the purview of the guidance and outside regulatory requirements. That caution includes carefully considering where misinformation clearly constitutes “truly independent” information. Companies should be mindful of the reality that “truly independent” is not a concept that is well defined, and should thus be cautious before asserting that certain misinformation may fall under the purview of Draft Guidance #1 as the FDA advances a broad interpretation of when a company is responsible for taking corrective action.

Internet/Social Media Platforms with Character Space Limitations — Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices

Prepared by the Office of Prescription Drug Promotion, the second guidance issued by the FDA last week, the Guidance on Presenting Risk/Benefit Information (“Draft Guidance #2”), addresses the parameters around presenting benefits and risks information on Internet and social media platforms with character spacing limitations, such as microblogs (e.g., Twitter) and online paid search (e.g., “sponsored links” on search engines such as Google). Draft Guidance #2 clearly establishes that, as a threshold matter, the character restrictions do not eliminate the company’s responsibility to ensure its promotional messaging complies with all applicable regulations related to advertising and labeling, and cautions that such forms of media may not be appropriate for promotion of certain products, such as those with complex indications or risk profiles.

For companies that choose to make product benefit claims on character-space-limited communication sites, while each may reasonably use common abbreviations (including scientific and medical abbreviations), punctuation marks, and other symbols to comply with space constraints, Draft Guidance #2 presents a broad set of rules that must be satisfied by each communication relating to both risk and benefit information.

Benefit Information

Benefit information should be accurate, non-misleading, and reveal material facts within each individual message or tweet.
Benefit information should be included with risk information in the same message. Do not spread benefit and risk information across multiple messages or tweets.

Risk Information

Risk information should be included with benefit information in the same message. Do not spread risk and benefit information across multiple messages or tweets.
Risk information should be “comparable in scope” to the benefit information, and should, at minimum, include the most serious risks, e.g., those included in a boxed warning or known to be life-threatening, among others, associated with the product. To determine whether risk information is “comparable in scope” to the benefit information, the FDA weighs (i) whether the risk information “qualifies any representations made about the product,” and (ii) whether the risk information is presented with a “prominence and readability comparable to the benefit claims about the product.” While risk disclosures may be concise when paired with benefit information, a hyperlink to a complete, and exclusive, discussion of risks should be included and appropriately titled and not promotional in nature.
Both the proprietary and established (generic) name for the product should be included within the character-space limited communication and on each landing page associated with each hyperlink in that initial communication. Draft Guidance #2 recommends that the landing page be devoted exclusively to the communication of risk information about the product and not to the promotional home page. Such landing page should also prominently display quantitative ingredient and dosing information for prescription drugs.

In light of the restrictions set forth by Draft Guidance #2, while companies should feel comfortable taking advantage of current social media platforms including those with character restrictions, they should also ensure that the parties responsible for drafting any such posts are aware of the parameters placed on such communications. A hypothetical example provided by Draft Guidance #2 exemplifies some of the potential disadvantages of such messaging:

NoFocus (rememberine HCl) for mild to moderate memory loss-May cause seizures in patients with a seizure disorder www.nofocus.com/risk

While the message complies with each of Draft Guidance #2’s directives, the balancing of risk and benefit information in a space restricted communication may have the unintended result of highlighting risk over benefit. Additionally, from a practical standpoint, the space constraints may prevent the inclusion of all necessary information. If a company cannot conclude that “adequate” benefit and risk information (along with other required disclosure) may be communicated in the same message or tweet — particularly at 140 characters — Draft Guidance #2 recommends that the company reconsider whether the use of the particular platform is the appropriate forum for the dissemination of such messaging before making use of such forums, once again in particular for drugs with complex indications or high risk profiles.

As a general conclusion, while the Guidance on Presenting Risk/Benefit Information is self-admittedly limited in scope, and does not address “promotion via product websites, webpages on social networking platforms (e.g., [Facebook, Twitter, YouTube]), and online web banners,” it undeniably provides helpful direction for drug and device companies’ use of social media sites for promotional messaging where communications are restricted to a limited number of characters, as well as highlighting how the FDA may intend to regulate such use. Companies should pay careful attention to the restrictions while taking advantage of the opportunities these social media platforms offer, and should take care to ensure to instill clear policies that comply with Draft Guidance #2 that are available to, and understood by, individuals tasked with producing and monitoring social media content for the company.

The FDA will be accepting comments on both Draft Guidance #1 and Draft Guidance #2 until September 16, 2014.

Article By:

Cynthia J. Larose

Christine M. Wahr

Of:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Wisconsin’s Password Protection Law Mandates Review of Policies and Practices

Wisconsin has joined the ranks of other states who have limited the circumstances under which employees or applicants can be required to provide access to his or her personal Internet account. The Social Media Protection Act (2013 Wisconsin Act 208) became effective April 16, 2014. The new law makes it illegal for an employer to request or require an employee or applicant to disclose personal Internet account access information. A parallel prohibition within the Act applies to educational institutions and landlords.

A “personal Internet account” is defined as an Internet-based account that is created and used by an individual exclusively for purposes of personal communications. With the passage of the Act, employers are now prohibited from:

Requesting or requiring an employee or applicant, as a condition of employment, to disclose access information to the individual’s personal Internet account or to ask the individual to grant access to or allow observation of that account.
Discharging or otherwise discriminating against an employee for exercising his/her right to refuse to disclose personal Internet account access information.
Refusing to hire an applicant because the individual did not disclose personal Internet account access information.

While the law primarily protects the privacy of employees and applicants, it also offers employers a limited degree of protection. Specifically, employers can:

Request or require an employee to disclose access information to the employer in order for the employer to gain access to or operate an employer-provided (or employer-paid) electronic communications device provided by virtue of the employee’s employment relationship or used for the employer’s business purposes.
Discharge or discipline employees for transferring proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.
If the employer has reasonable cause, conduct an investigation or require an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account or to conduct an investigation of any other alleged employment-related misconduct, violation of the law or violation of the employer’s work rules. During the investigation, the employer can require the employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
Restrict or prohibit an employee’s access to certain Internet sites, while using an employer-provided (or paid for) electronic communications device, or while the employee is using the employer’s network or other resources.
View, access or use information about an employee or applicant that can be obtained without access information or that is available in the public domain.
Request or require an employee to disclose his or her personal electronic mail address.

A person who has been discharged, expelled, disciplined, or otherwise discriminated against for reasons provided under this law may file a complaint with Wisconsin’s Department of Workforce Development (the “DWD”).

Employers should make sure that their employment policies and practices conform to the requirements of 2013 Wisconsin Act 208. In particular, employers should make sure that employees using employer-provided or paid for electronic communication devices for business purposes do not have any expectation of privacy in such devices or the communications that flow from them.

In addition, employees should be informed that they are prohibited from disclosing proprietary or confidential information or financial data to anyone using personal Internet accounts and only for legitimate business reasons if using an employer-provided account. Lastly, employers should make sure that their employment policies are clear in reserving the right to conduct, and in expecting employees to cooperate in, investigations concerning the unauthorized transfer of proprietary, confidential or financial information.

Article By:

Jon E. Anderson

Of:

Godfrey & Kahn S.C.

To Satisfy New Search Algorithms, Legal Websites Need Quality Content

The success of a law-firm website is determined by how many clients and potential clients visit the site, spend time there and take action based on what they discover.

Over the years, law-firm marketers focused on keyword and link strategies to enhance search engine results and increase traffic to their websites. While these are still valuable tools, recent developments in the search universe have shifted the emphasis to content strategy.

Quality content includes well-written articles, blog posts, videos, webcasts, presentation slide decks, infographics, eBooks and white papers. Quality content addresses client needs.

Sixty-seven percent of the time, online searchers use Google to find what they are looking for. To provide the best results, Google is constantly tweaking its search algorithm. (An algorithm is a process or set of rules to be used by a computer in calculations or other problem-solving operations.) These algorithms are designed to maintain search engine integrity and punish violators.

Sara Downey Robinson and Chris Davis discussed the changing landscape of digital marketing and search engine optimization at the monthly meeting of the Rocky Mountain Chapter of the Legal Marketing Association, held May 13 at Guard and Grace in LoDo Denver.

Davis is business development director at Burns Marketing, a full-service B2B marketing agency that combines traditional and digital marketing to help clients drive demand. Robinson is marketing coordinator at Inflow, a top inbound-marketing firm specializing in search.

Panda, Penguin and Hummingbird

Panda and Penguin are two major changes to the existing Google algorithm made in 2011 and 2012, respectively. In 2013, Google released a totally new algorithm called Hummingbird (which incorporates and enhances the updates made by Panda and Penguin). These three developments have completely changed the way law firms must look at search.

“Law-firm sites that regularly showed up on page one now find themselves on page 20,” said Robinson. “Since searchers rarely go beyond the second page of results in an online search, this is a real problem.”

Google Panda focuses on keywords. Sites with keyword “stuffing” are demoted or flagged as spam. Panda also penalizes low-quality content, thin content, duplicate content and the amount of advertising compared with the amount of useful content on a site.

Google Penguin focuses on links. It focuses on “black hat” tactics like links that come from poor-quality sites, from sites that aren’t topically relevant to a target market, paid links, and links where the anchor text is overly optimized (exact-match anchor text). Use natural language in your links, and vary it.

“Quality inbound links are not found at garage sales, “said Robinson. “Steer clear of link farms. A few high-quality, carefully developed links perform much better than a large number of weak, irrelevant links. It takes time and perhaps a dedicated staff person to develop and nurture quality links.”

The new Google Hummingbird algorithm looks for a steady stream of high-quality, relevant content and natural language on webpages – and rewards those who provide it. Hummingbird attempts to decipher a search engine query by using the context of a question rather than the specific keywords within the question. Thin content, keyword stuffing and lack of relevant content will cause significant demotions.

“Content marketing is a technique that creates and distributes valuable, relevant and consistent content to attract and acquire a clearly defined audience,” said Davis, “with the objective of driving profitable customer action.”

Identify client personas and clarify their needs

Before a law firm can create relevant content, it needs to know with whom it is communicating. In marketing talk, this is called the “user persona” – or target market.

“In user-centered design and marketing, personas are user types that might use a legal service in a similar way,” said Davis. “A small law firm might target one user persona. A large law firm will target numerous user personas.”

One law-firm user persona might be high-income individuals going through divorce. Another might be small businesses in need of venture capital. Another might be large medical equipment manufacturers facing product liability lawsuits. The more specific the persona, the more specific a law firm’s content can be. Relevant content will answer the questions these users are asking, using natural language.

A user personal is a representation of the goals and behavior of a hypothesized group of users. In most cases, personas are synthesized from data collected from user interviews.

“An effective law firm website will focus not on the firm’s capabilities, but on the identified needs of a persona or personas,” said Davis. “It will use industry- or interest-specific terminology within a context familiar to the targeted persona.”

Create relevant content

Law firms that want to prevent or correct loss of search engine result page rankings and traffic should publish meaningful, original content on a regular basis. The goal is content that will establish a firm, practice group or lawyer as a though leader in an area relevant to a user persona.

“Take the time to discover the common questions your clients have, and provide the answers to these questions,” said Davis. “Relevant content can be written, but it also can and should be visual. Video content posted on YouTube (which is owned by Google) is particularly powerful as ‘Google juice.’”

Instead of using keywords like “car accident,” use more specific terms like “car accident lawsuit” or “car accident insurance”, or better yet natural language terms like “What should I do if I am sued for a DUI car accident?” or “What should I look for when buying car insurance for an older vehicle?” Think in terms of full-fledged questions that a person might ask Siri on a smartphone.

Once search brings users to a law firm’s site, there must be a way to create and nurture a relationship and convert the potential client into a real client over time. Each item of posted content should contain a call to action – some way for the user to interact with the site so that the firm can capture data. This could be a way to comment on a white paper or download information about an upcoming event.

Use analytics to measure success

“Take advantage of Google Analytics to collect data that can be used to improve the quality of your webpages – adding more of what works and eliminating what does not,” said Robinson. “In Google Analytics, which is currently free, law firms can set up specific goals to study how users are entering and interacting with your website.”

Google Analytics lets a law firm know which content is most-viewed and acted upon, so that similar content can be added. It lets the firm know which content is ignored, so that it can be eliminated or improves. It lets a firm know the exact path users take through its site, so that adjustments can be made to create a better user experience.

If observation and analytics show that a law firm website is not getting the results it wants, an audit can help determine the source of the problem, take steps to fix the problem, measure the results of these steps, and look for any others areas that could be improved.

“Increasing inbound traffic to your website is not magic – it is a combination of art and science,” said Robinson. “You should select any agency that makes you feel comfortable and uses language that is easy to understand. You should never feel intimidated.

“At the same time, do not expect miracles,” said Robinson. “Go into the process with reasonable expectations. It takes time to make changes, add quality content and wait for the search engines to find and reward this content. Each day, more than one million pieces of new content are posted to the Internet. It takes time to rise above the fray.”

A law firm that has experienced worsening search engine results in the wake of Panda, Penguin and Hummingbird can take positive steps to restore performance. Google will continue to reward webpages with strong content marketing efforts, including answer-driven content. It also rewards sites that generate social media buzz – especially an active presence on its proprietary YouTube and Google+ platforms.

Article By:

Janet Ellen Raasch

Of:

Strategic Writing And Ghostwriting

The Effect of On-line Shopping on Retail Leases and Percentage Rent

“Percentage Rent” is a familiar concept to retailers and landlords and has long formed a significant aspect of the business arrangement between commercial landlords and their retail tenants. In a lease arrangement that includes percentage rent, a landlord may negotiate a relatively reduced base rent for the chance to have some “skin in the game” by agreeing to participate in a percentage of tenant’s revenue, through gross sales, when that revenue exceeds a certain threshold amount. Tenants appreciate this arrangement because they pay percentage rent if they are doing well and their sales exceed that negotiated threshold level. Landlords appreciate this model because it compensates them for the costs they incur in creating and maintaining successful shopping centers with amenities, such as food courts and open spaces. If a successful shopping center drives foot traffic to individual tenants that increases their sales, tenants are often willing to compensate landlords for their part in driving that foot traffic. The concept really is a “rising tide lifts all boats” model, in which landlords and tenants work as partners.

The explosion of on-line shopping throws a wrench into this scheme. With more people purchasing from retailers on-line, and more retailers encouraging customers to place orders on-line, how will retail leases with percentage rent provisions be affected? Many percentage rent leases are carefully crafted to limit the types of sales that count toward the revenue in which landlord shares, often by including as only those sales “made from the store.” The question to consider: if a large percentage of a store’s sales are made on-line, can or should those sales be treated as made from, or initiated in that store, such that the landlord will be entitled to a percentage of such sales?

It is clear that out of stock items unavailable during a customer’s visit to a store, but ordered at the store and delivered directly to the customer’s home should be counted toward gross sales at that store and counted toward the percentage rent calculation. Similarly, on-line sales made at a computer terminal in the store, or on-line sales made at the customer’s home and picked up at the store should also be counted. It becomes much less clear when a customer never sets foot in the store itself in either placing an order or receiving goods. It may be difficult for a landlord to assert their right to a percentage of an on-line sale made by a customer in their home where the merchandise is then delivered directly to that customer’s home where the transaction occurs without any contact with the store premises.

As traditional retail stores work to accurately account for on-line sales with their landlords, another issue has recently emerged. Traditional on-line only merchants such as Amazon have seen a potential benefit of having a brick and mortar presence to market their business and may soon open physical locations. The question of percentage rent may become even more difficult to account for when the store front is really merely a marketing device to drive customers to company websites.

A thoughtful balance should be found to properly compensate Landlords for the sales they are driving to retailers. At the same time, from tenant’s perspective retail leases must be carefully drafted to exclude sales that are not derived from a particular store. If this balance is struck properly, landlord/tenant partnerships will be well positioned for success in the retail and commercial real estate markets.

Article By:

Geoffrey H. Smith

Of:

Sherin and Lodgen LLP

HEARTBLEED: A Lawyer’s Perspective on the Biggest Programming Error in History

By now you have probably heard about Heartbleed, which is the biggest security threat to the Internet that we have ever seen. The bottom line of Heartbleed is that for the past two years most web sites claiming to besecure, shown by the HTTPS address (the S added to the end of the usual HTTP address was intended to indicate a web secured by encryption), have not been secure at all. Information on those webs could easily have beenbled out by any semi-skilled hacker who discovered the defect. That includes your user names and passwords, maybe even your credit card and bank account information.

For this reason every security expert that I follow, or have talked to about this threat, advises everyone to change ALL of their online passwords. No one knows who might have acquired this information in the past two years. Unfortunately, the nature of this software defect made it possible to steal data in an untraceable manner. Although most web sites have upgraded their software by now, they were exposed for two years. The only safe thing to do is assume your personal information has been compromised.

Change All of Your Passwords

After you go out and change all of your passwords – YES – DO IT NOW – please come back and I will share some information on Heartbleed that you may not find anywhere else. I will share a quick overview of a lawyer’s perspective on a disaster like this and what I think we should do about it.

Rules of the Internet

One of the things e-discovery lawyers like me are very interested in, and concerned about, is data security. Heartblead is the biggest threat anyone has ever seen to our collective online security, so I have made a point of trying to learn everything I could about it. My research is ongoing, but I have already published on detailed report on my personal blog. I have also been pondering policy changes, and changes in the laws governing the Internet that be should made to avoid this kind of breach in the future.

I have been thinking about laws and the Internet since the early 1990s. As I said then, the Internet is not a no-mans-land of irresponsibility. It has laws and is subject to laws, not only laws of countries, but of multiple independent non-profit groups such as ICANN. I first pointed this out out as a young lawyer in my 1996 book for MacMillan, Your Cyber Rights and Responsibilities: The Law of the Internet, Chapter 3 of Que’s Special Edition Using the Internet. Anyone who commits crimes on the Internet must and will be prosecuted, no matter where their bodies are located. The same goes for negligent actors, be they human, corporate, or robot. I fully expect that several law suits will be filed as a result of Heartbleed. Time will tell if any of them succeed. Many of the facts are still unknown.

One Small Group Is to Blame for Heartbleed

The surprising thing I learned in researching Heartbleed is that this huge data breach was caused by a small mistake in software programming by a small unincorporated association called OpenSSL. This is the group that maintains the open source that two-thirds of the Internet relies upon for encryption, in other words, to secure web sites from data breach. It is free software and the people who write the code are unpaid volunteers.

According to the Washington Post, OpenSSL‘s headquarters — to the extent one exists at all — is the home of the group’s only employee, a part timer at that, located on Sugarloaf Mountain, Maryland. He lives and works amid racks of servers and an industrial-grade Internet connection. Craig Timberg, Heartbleed bug puts the chaotic nature of the Internet under the magnifying glass (Washington Post, 4/9/14).

The mistake that caused Heartbleed was made by a lone math student in Münster, Germany. He submitted an add-on to the code that was supposed to correct prior mistakes he had found. His add on contained what he later described as a trivial error. Trivial or not, this is the biggest software coding error of all time based upon impact. What makes the whole thing suspicious is that he made this submission at one minute before midnight on New Year’s Eve 2011.

Once the code was received by OpenSSL, it was reviewed by it before it was added onto the next version of the software. Here is where we learn another surprising fact, it was only reviewed by one person, and he again missed the simple error. Then the revised code with hidden defect was released onto an unsuspecting world. No one detected it until March 2014 when paid Google security employees finally noticed the blunder. So much for the basic crowd sourcing rationale behind the open source software movement.

Conclusion

Placing the reliance of the security of the Internet on only one open source group, OpenSSL, a group with only four core members, is too high a risk in today’s world. It may have made sense back in the early nineties when an open Internet first started, but not now. Heartbleed proves this. This is why I have called upon leaders of the Internet, including open source advocates, privacy experts, academics, governments, political leaders and lawyers to meet to consider various solutions to tighten the security of the Internet. We cannot continue business as usual when it comes to Internet data security.

Article By:

Ralph C. Losey

Of:

Jackson Lewis P.C.

Social Media Marketing – New FTC (Federal Trade Commission) Guidance On Generating “Buzz”

For the first time since it issued its Guides Concerning the Use of Endorsements and Testimonials in Advertising in 2009, the FTC has provided new guidance on the use of social media to generate consumer interest (or “buzz”) in a brand.

Shoe manufacturer Cole Haan had a great social media marketing idea. They would run a contest through Pinterest. The winner would get a $1,000 shopping spree courtesy of Cole Haan. To enter, Pinterest users had to “pin” images of Cole Haan shoes on Pinterest. They even came up with a great slogan for the campaign: “Wandering Sole.” Finally, so that people could find the images easily, contestants were required to include the hash tag “#wanderingsole” in their pin descriptions.

This was a great marketing idea. Lots of Pinterest users would post pictures of Cole Haan’s product on Pinterest and generate buzz about Cole Haan shoes. Here is what one Pinterest page currently looks like:

There was only one problem; the Federal Trade Commission.

The FTC considered the posting of images of Cole Haan shoes by Pinterest users to be endorsements of the product. To be clear, the issue was not whether the Pinterest users actually intended to endorse the brand. Rather, the concern was whether viewers of the image might perceive the posting of the images to be endorsements. As such, the FTC investigated the marketing practice and issued a closing letter to Cole Haan regarding their investigation.

As stated in the closing letter, the FTC thought that the since the Pinterest “pins” constituted an endorsement, there should have been a “clear and conspicuous” disclosure concerning the fact that the “endorsers” (i.e., the Pinterest users entering the contest) were being compensated for their endorsement, namely, the chance to win the $1,000 shopping spree. The FTC did not believe that the “#Wanderingsole” hash tag was sufficient to provide this required disclosure. Fortunately, the FTC did not take enforcement action against Cole Haan, recognizing that the FTC had not squarely addressed this issue before.

So finally, we get to the point of this post. While I understand the FTC’s point (I really do), I think social media marketers will need more specific bright line guidance as to what type of disclosure is required. The reason is that in the social media context, the amount of text that may be capable of devoting to such disclosure can be very limited. It is noteworthy that the 2009 guidance issued by the FTC provided numerous examples to help us identify when endorsement disclosure s would be required. Not one of those examples, however, indicated what would constitute a sufficient disclosure.

In fact, one of the comments submitted (by Heath-McLeod) in connection with the 2009 guidelines requested that the FTC provide “minimum standards for the size and clarity of disclosures.” The FTC expressly rejected this request saying that:

“advertisers flexibility to meet the specific needs of their particular message is often preferable to attempting to mandate specific language, font, and other requirements applicable across-the-board to all ads. Advertisers thus have always been free under the Guides to make their disclaimers as large and clear as they deemed appropriate to convey the necessary information to consumers”

That’s good, I suppose. Advertisers need some freedom to do what they think is appropriate in the context of their marketing. But how, as a practical matter, are advertisers supposed to get comfortable that the disclosure they give is sufficient? For example, would it have been sufficient for the Pinterest users to have included the word “sponsored” in their pin description? How about just the word “ad?” Would that have been sufficient? It’s not clear.

Consider, for example, the fact that a similar disclosure having to be made through Twitter or using SMS (i.e., texting) might be very difficult given the 140 character limit. Now, consider further that the FTC guidelines for endorsements also require an additional disclosure when the person depicted in the endorsement is not a real consumer of the product. Perhaps Cole Haan’s hash tag should have read:

“#These pins are part of a contest. Contestants may win prize for posting pins of Cole Haan products. Persons in such pins may not be actual consumers of the pinned product”

Darn, that’s 141 characters. Maybe if I get rid of the “#” ….

Article By:

Kurt E. Anderson

Giordano, Halleran & Ciesla, P.C.

Gaga for Gigabit: The FCC (Federal Communications Commission) Liberates 100 MHz of Spectrum for Unlicensed Wi-Fi

On April 1, the FCC took steps to remedy a small but growing annoyance of modern life: poor Wi-Fi connectivity. Removing restrictions that had been in place to protect the mobile satellite service uplinks of Globalstar, and by unanimous vote, the FCC’s First Report and Order on U-NII will free devices for both (i) outdoor operations; and (ii) operation at higher power levels in the 5.15 – 5.25 GHz band (also called the U-NII-1 band).¹The Report and Order also requires manufacturers to take steps to prevent unauthorized software changes to equipment in the U-NII bands, as well as to impose measures protecting weather and other radar systems in the band.

The practical impact of these rule changes is difficult to overstate. By removing the operating restrictions in the U-NII-1 band, the FCC essentially doubled the amount of unlicensed spectrum in the 5 GHz band available to consumers. In the near future, use of this spectrum will help to alleviate congestion on existing Wi-Fi networks, especially outdoor “hotspots” typically used at large public places like airports, stadiums, hotels and convention centers. Two less-obvious, longer-term benefits also are worth watching.

First, the new IEEE 802.11ac standard for Wi-Fi was finalized in January 2014. This next generation Wi-Fi standard is capable of delivering vast increases in raw throughput capacity to end-users, often approaching the holy grail of transfer speeds: 1 gigabit. To achieve those speeds, wide channels of operation are required – channels that simply were not available to Wi-Fi devices. Now that the U-NII-1 band has been unleashed for Wi-Fi usage, there should be little impediment to the near-term rollout of 802.11ac compatible devices.

This new standard will offer marked improvements in download speeds and streaming quality, and be a boon to consumers who increasingly rely on mobile devices for bandwidth intensive applications such as HD video. Unsurprisingly, cable operators in particular are excited by the possibilities of this technology; on the day the Report and Order was released, Comcast Chief Technology Officer Tony Werner authored a lengthy blog post touting the possibilities of Comcast offering Gigabit Wi-Fi to its customers utilizing the U-NII-1 band.^[2]

Second, in addition to the untempered enthusiasm of the MSOs, wireless carriers also have a stake in this unlicensed spectrum. Specifically, as use of licensed mobile spectrum continues to expand exponentially, the wireless carriers will increasingly encourage wireless offloading as a means of addressing congestion and capacity issues on macro cellular networks. For example, Cisco Systems estimates that 45% of global mobile data traffic was offloaded onto the fixed network through Wi-Fi or small cells in 2013^.[3]

This transformation of 100 MHz of spectrum in the U-NII-1 band marks one part of a renewed focus on consumer broadband at the FCC. In addition to unlicensed Wi-Fi, the FCC is also in the middle of a proceeding – covered in an earlier FCC Law Blog post^[4]– to streamline rules for wireless infrastructure. Taken together with the FCC’s release earlier this week of auction rules for 65 MHz of AWS-3 spectrum later this year, it becomes clear that although it is early yet, the Wheeler Commission is gaga for broadband.

_{[1] U-NII is the acronym for “Unlicensed National Information Infrastructure devices”, unintentional radiators which facilitate broadband access and wireless local area networking, including Wi-Fi. A copy of the First Report and Order is available here.}

_{[2] See Tony Werner’s blog post here.}

_{[3] See Global Mobile Data Traffic Forecast Update, 2013-2018.}

_{[4] See Sleeper “Small” Cells: The Battle Over The FCC’s Wireless Infrastructure Proceeding.}

Article By:

Douglas A. Svor

Dave Thomas

Of:

Sheppard, Mullin, Richter & Hampton LLP

Tag: Internet

Generic Top Level Domains – Current Sunrise Periods Open – August 2014 Update

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