I want to share with you an interesting article I found about the legality of use of Tweets for marketing and research purposes. The article suggests that it is legal, given that Tweets are not designated private. However, privacy concerns still exist, and in the future the answer to this question may be different.
I am reprinting the article below:
Harvesting Tweets for Research and Profit - Is it Legal?
Harvesting tweets is on the rise. Researchers and marketers alike are now capturing and downloading Tweets from Twitter's database. Privacy activists argue privacy concerns. Researchers, marketers, and Twitter users all want to know - is Twitter harvesting legal?
How and Why
Every day, users of the Twitter social media publishing platform send out millions of Tweets -- short electronic messages of 140 characters or less -- to their readers and followers.
Most Twitter users are not aware that it's relatively easy for anyone with a skilled programmer to harvest and download their Tweets. All a programmer has to do is to gain access to Twitter's Application Programming Interface (API), and then to write code that requests data from Twitter's servers through the API. The code contains search criteria, usually in the form of key words and phrases of interest.
One prime example of why Tweets are harvested is the harvesting of Tweets by news organizations Tweets during the riots that followed the Iranian presidential election of 2009. The results provided an excellent source of real time information from a closed society as events unfolded, and afterwards, a fascinating historical record of how the protesters worked together under difficult conditions.
Advertisers have also joined the Tweet harvesting process. For example, suppose you're going to lunch in an urban office setting, and you tweet a collection of co-workers suggesting a specific restaurant. A savvy marketer harvests your Tweet, and then emails to your smart phone a coupon for a hefty discount at another restaurant nearby. Pretty nifty for the savvy marketer, and perhaps a welcome suggestion for a discounted lunch, but is it legal?
The Electronic Communications Privacy Act
In 1968, the Wiretap Act was passed to impose rules for obtaining wiretap orders. In 1986, the Wiretap Act was amended by The Electronic Communications Privacy Act to extend coverage of the Wiretap Act to electronic communications.
Generally, the Wiretap Act as amended prohibits the intentional interception, use, or disclosure of wire and electronic communications, unless a statutory exception applies. This means that all persons (including governments) are prohibited from wiretapping phones and intercepting electronic communications over the Web, unless a statutory exception (safe harbor) applies.
How does this apply to Tweets? A specific statutory exception applies to electronic communications that are publicly accessible. This is the exact language of the statutory exception: "It shall not be unlawful... for any person... to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public".
Readily accessible to the general public is defined by the statute as follows: "... with respect to a radio communication, that such communication is not... scrambled or encrypted".
It would appear that any Tweet that is not designated by the Twitter user as "private" would clearly fall within the statutory exception because the Tweet is not scrambled or encrypted. So, Tweet harvesters appear to have a strong argument that they're protected by the publicly accessible safe harbor.
The Google Litigation
Google is now involved in litigation involving its collection of WiFi data. It seems that Google's Street View cars have engaged in the now-ended practice of collecting bits of private wireless data while cruising neighborhoods for data used in its Google Maps online service.
Although Google ceased this type of electronic data collection and stated that it was not intentional, a class action suit has been filed against Google.
Conclusion
The harvesting of Tweets that are not designated as private would appear to be protected by the publicly accessible safe harbor.
It's interesting that Google's collection of WiFi data is very similar to Tweet harvesting. It would seem that publicly accessible safe harbor would also protect Google in this litigation, but we'll have to wait and see how this case is resolved.
Copyright © 2010 Chip Cooper
This article is provided for educational and informative purposes only. This information does not constitute legal advice, and should not be construed as such.
Leading Internet, IP and software lawyer Chip Cooper has automated the process of drafting Website Legal Forms. Use his free online tool - Website Documents Determinator -- to determine which documents your website really needs for FTC website forms and website legal compliance. Discover how quick, easy, and cost-effective it is to draft your website contracts at http://www.digicontracts.com/.
Friday, September 10, 2010
Thursday, September 9, 2010
Changes to the “Accredited Investor” Definition - a Clarification
As I posted earlier, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") amended the definition of an accredited investor to exclude the value of the person’s primary residence from the calculation of net worth. Prior to the Dodd-Frank Act, a natural person was an accredited investor if such person’s net worth, together with spouse, exceeded $1 million. Investors could previously include the value of their primary residence.
The Securities and Exchange Commission (the “SEC) issued a Compliance and Disclosure Interpretation relating to the change, clarifying that since the primary residence is now excluded from the calculation, so is the mortgage for that residence up to the fair market value of the residence (it also relates to any other loan secured by the residence). However, any mortgage in excess of the FMV of the residence is to be counted as a liability in calculating the net worth of the investor. This clarification is particularly relevant in the view of the recent decline in real estate prices. It is not uncommon that the mortgage for the residence exceeds its fair market value.
The other way for a natural person to become an accredited investor (if such person had an individual income in excess of $200,000 in each of the two most recent years or joint income with their spouse exceeding $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year) remains unchanged.
A link to the SEC Interpretation is here: http://sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm#179.01.
The Securities and Exchange Commission (the “SEC) issued a Compliance and Disclosure Interpretation relating to the change, clarifying that since the primary residence is now excluded from the calculation, so is the mortgage for that residence up to the fair market value of the residence (it also relates to any other loan secured by the residence). However, any mortgage in excess of the FMV of the residence is to be counted as a liability in calculating the net worth of the investor. This clarification is particularly relevant in the view of the recent decline in real estate prices. It is not uncommon that the mortgage for the residence exceeds its fair market value.
The other way for a natural person to become an accredited investor (if such person had an individual income in excess of $200,000 in each of the two most recent years or joint income with their spouse exceeding $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year) remains unchanged.
A link to the SEC Interpretation is here: http://sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm#179.01.
Thursday, September 2, 2010
Misleading Online Endorsements
On August 26, 2010, a public relations firm, Reverb Communications, agreed to settle the Federal Trade Commission (FTC) charges relating to misleading online endorsements. Reverb was hired by developers of a video game application to promote the game app. Reverb had its employees pose as independent disinterested customers and post game reviews at the online iTunes store, while not disclosing the financial connection Reverb had with the game developers.
The proposed settlement order requires Reverb to remove any posted endorsements that say that the reviewers are independent consumers and fail to disclose connection with the game developers. Also, going forward Reverb and its employees cannot post reviews without disclosing such material connections.
This settlement order should not come as a surprise given that last year the FTC revised its Endorsements and Testimonials Guides to include all media – including blogs and social networking sites. The previous Guides were written in 1980 and did not extend to social media. The legal principles, however, stayed the same. The Guides reflect three basic principles:
1. Endorsements must be truthful and not misleading;
2. If the advertiser doesn’t have proof that the endorser’s experience represents what consumers will achieve by using the product, the ad must clearly and conspicuously disclose the generally expected results in the depicted circumstances; and
3. If there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement, it should be disclosed.
The full text of the FTC press release relating to the settlement is available here: http://www.ftc.gov/opa/2010/08/reverb.shtm
The full text of the Revised Guides is available here:
http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf
Also, I recommend all bloggers, users of social media sites and online businesses to review the following helpful Q&A posted by the FTC relating to the Revised Guides:
http://ftc.gov/bcp/edu/pubs/business/adv/bus71.shtm
The proposed settlement order requires Reverb to remove any posted endorsements that say that the reviewers are independent consumers and fail to disclose connection with the game developers. Also, going forward Reverb and its employees cannot post reviews without disclosing such material connections.
This settlement order should not come as a surprise given that last year the FTC revised its Endorsements and Testimonials Guides to include all media – including blogs and social networking sites. The previous Guides were written in 1980 and did not extend to social media. The legal principles, however, stayed the same. The Guides reflect three basic principles:
1. Endorsements must be truthful and not misleading;
2. If the advertiser doesn’t have proof that the endorser’s experience represents what consumers will achieve by using the product, the ad must clearly and conspicuously disclose the generally expected results in the depicted circumstances; and
3. If there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement, it should be disclosed.
The full text of the FTC press release relating to the settlement is available here: http://www.ftc.gov/opa/2010/08/reverb.shtm
The full text of the Revised Guides is available here:
http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf
Also, I recommend all bloggers, users of social media sites and online businesses to review the following helpful Q&A posted by the FTC relating to the Revised Guides:
http://ftc.gov/bcp/edu/pubs/business/adv/bus71.shtm
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