Corporate Archives

Can your Targeted Ads land you in Legal Hot Water?

Finally after years of criticism, Facebook announced that it would stop allowing advertisers in key categories to show their messages only to people of a certain race, gender or age group. The company said that anyone advertising housing, jobs or credit — three areas where federal law prohibits discrimination in ads — would no longer have the option of explicitly targeting people on the basis of those characteristics.

Facebook has been accused of allowing advertisers to unlawfully discriminate against minorities, women, and the elderly by using the platform’s ad-targeting technology. The settlement resolves five separate cases that had been brought against Facebook over discriminatory advertising since 2016, following a ProPublica investigation that revealed Facebook let advertisers choose to hide their ads from blacks, Hispanics, or people of other “ethnic affinities.” Lawsuits soon followed. The most recent case was an EEOC complaint by the American Civil Liberties Union in September, alleging that Facebook allowed job ads to discriminate against women.

This is significant because Facebook’s massive revenue primarily comes from ads, which are so lucrative because of their microtargeting capabilities. In 2017, according to its annual earnings report, the company made $39.94 billion on ads alone. Its total revenue for that year was $40.65 billion, meaning ads accounted for roughly 98% of revenue.

But when a company or advertiser shows an ad only to certain people, it excludes a protected class of workers. And that’s illegal under federal law. “It is a game-changer,” says Lisa Rice, the executive vice president of the National Fair Housing Alliance, whose lawsuit against Facebook was among those settled Tuesday. “The settlement positions Facebook to be a pacesetter and a leader on civil rights issues in the tech field.”

“We think this settlement is historic and will go a long way toward making sure that these types of discriminatory practices can’t happen,” Sheryl Sandberg, the company’s COO, said in an interview.

As part of the agreement, Facebook will build a designated portal for advertisers to create housing, employment, and credit ads, which will not allow targeting users by age, gender, zip code, or other categories covered by anti-discrimination laws. Microtargeting options that appear to relate to these protected categories will be off-limits as well. Any advertiser that wants to run an ad on Facebook will be required to indicate if their ad is related to one of these three things. According to The Washington Post, Facebook has said it will make these changes by the end of the year.

“Housing, employment, and credit ads are crucial to helping people buy new homes, start great careers, and gain access to credit. They should never be used to exclude or harm people,” Sandberg wrote in a post announcing the settlement. “Getting this right is deeply important to me and all of us at Facebook because inclusivity is a core value for our company.”

Advertisers that deliberately and repeatedly avoid the new portal when placing ads in the three regulated areas will probably face consequences, though the company said it had yet to determine those.
Pauline Kim, a professor of employment law at Washington University in St. Louis, praised the changes but cautioned against overstating their significance. “Taking the explicit ability to discriminate off the table is an important first step,” Professor Kim said. “But I don’t think it solves the problem of the potential for biased serving of ads.” Ms. Kim said, for example, that an employer could place an ad that it intended to show to both men and women, but over time, Facebook’s algorithms could begin to show the ad primarily to men if it determined that men were much likelier to click on the ad. “It’s within the realm of possibility depending on how the algorithm is constructed,” Professor Kim said. “You could end up serving ads, inadvertently, to biased audiences.”
Sandberg acknowledged the limits of the policy changes and said Facebook had committed to working with the other parties to find additional ways to root out discrimination. The parties will discuss progress on that front every six months for three years after the changes are rolled out.
“In addition to being a historic settlement of five separate lawsuits that will change practices on Facebook and other platforms, it’s also notable that we agreed to continue to study the algorithmic effect of ads with Facebook,” said Anthony Romero, executive director of the A.C.L.U.
Facebook is also removing thousands of so-called interest segments, including some that advertisers could use to reach people by characteristics like gender or age, for ads in the three regulated areas. For example, to show how advertisers could keep certain groups from seeing housing ads on Facebook, the National Fair Housing Alliance once created a fictitious ad that excluded groups like “corporate moms” and “stay at home” mothers.
Those segments would no longer be available for targeting by housing, employment and credit ads once Facebook carries out the proposed changes.
Despite some of the expected pushback, civil rights advocates are applauding and they are confident Facebook will follow through. The company has agreed to twice-annual meetings with the groups, as well as ongoing trainings with outside experts on these issues. Facebook has agreed to let the NFHA, the ACLU, and others conduct independent testing of its ad sites to make sure Facebook does what it says it will.
“If any advertiser was trying to skirt or circumvent the system, we have methods for finding that out and we’ll be able to bring that to the attention of Facebook,” says Rice of the National Fair Housing Alliance.

Open Source Network Tools for Investigations

What is Open Source Intelligence (OSINT)?

Open Source Intelligence (OSINT) is defined as data and information that is collected legally from open and publicly available resources. Obtaining the information doesn’t require any type of secretive method and is retrieved in a manner that is legal and meets copyright requirements.

The Internet has all the information readily available for anyone to access. Collection of information using these tools are referred to as open source intelligence. Information can be in various forms like audio, video, image, text, file etc. A few of the data categories available on the internet include:

Social media websites like Twitter, Facebook, Instagram, etc.
Public facing web servers: Websites that hold information about various users and organizations.
Mass media (e.g. newspapers, TV, radio, magazines and websites)
Code repositories: Software and code repositories like Codechef, Github hold a lot of information but we only see what we are searching for.
Public records databases
Government reports, documents and websites
Maps and commercial imagery
Photos and videos
The dark web

Who Engages in Open Source Intelligence gathering and analysis?

Anyone who knows how to use the tools and techniques to access the information is said to have used the process. However, the majority is used formally by the United States intelligence community, the military, law enforcement, IT security professionals, private businesses and private investigators.

Gathering the information manually can eat up a lot of time, but now there are tools that can help collect the data from hundreds of sites in minutes, easing this phase. Let’s say, for example, you want to identify whether a username is present and if so, on which/all social media websites. One way is to log in to all the social media websites (and there are more than you know!) and test the username. Another way is to use an open source tool that is connected to various websites and check the usernames presence on all the websites at once. This is done just in seconds using OSINT.

List of Open Source Intelligence Tools

The tools and techniques used in Open Source Intelligence searching go much further than a simple Google search. Following is a list of helpful, time-saving open source intelligence tools. Note: most are free, although some have advanced features available for a fee.

Email Breach Lookup – Have I Been Pawned

This site allows you to find out if a particular email address was affected by one of the many data breaches that have occurred over the years

Fact Checking Websites – Hoaxy, Media Bugs, PolitiFact, SciCheck, Snopes, Verification Junkie

Hacking and Threat Assessment – Norse

OSINT Image Search – Current Location, Image Identification Project, TinEye

Public Records (Property) – Melissa Data Property Viewer, Emporis Building Search

Sites like Zillow, Trulia, Realtor.com, etc. are always useful and should be a part of your investigative toolbox. But the two mentioned above provide various twists on property records searching and are definitely worth checking out.

OSINT Search Engines – Google Correlate, Google Search Operator Guide, Million Short, Shodan, TalkWalkerAlerts

OSINT Social Media Search Tools – Facebook Search Tools, TweetBeaver

OSINT Tool Websites – IntelTechniques

Software – Hunchly, Maltego, SearchCode

Surveillance Cameras – Earth Cam, Insecam

Username Check – CheckUserNames, Knowem.com, Namech_k

Virus Scanner – VirusTotal

Website Analysis – BuiltWith.com

The main benefit of OSINT is how the technology can help us in our day to day tasks. With all that information freely available multiple actors can accomplish various tasks. A security professional can use the information for data protection, security testing, incident handling, threat detection, etc. A threat actor, on the other hand, can gain information to perform phishing attacks, targeted information gathering, DDOS attacks and much more. The key is to select the right tools and techniques. Since this is all free, users can make their decision regarding how best to access the information they need.

#MeToo Allegations on the Rise in Corporate USA

“People are recognizing the impact — and this is the #MeToo movement — of harassment on people, and how it can impact their careers for years.”
Victoria Lipnic, acting chair, U.S. Equal Employment Opportunity Commission

According to the EEOC (Equal Employment Opportunity Commission) the data shows a sharp increase in sexual harassment cases in 2018 by as much as 12%.

Based on preliminary data, in FY 2018:

The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50 percent increase in suits challenging sexual harassment over fiscal year 2017.
In addition, charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017.
Overall, the EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.

More and more companies are being advised to begin a reputation management program within their organization to precede potential threats to their executives and employees.

When Is It Illegal to Fire an Employee over Social Media Posts?

Here are some examples of when an employee’s social media posts should not result in firing, even if it may seem warranted otherwise:

When the post is protected in some way. The most prominent example that some employers overlook or get wrong: Employees should not be fired when their social media post could be considered “concerted activity” and could, therefore, be protected activity under the National Labor Relations Act (NLRA). Concerted activity includes discussing working environment among coworkers—even in a negative way in public. Employers can get into trouble when they’re too restrictive in their social media policies—over broad restrictions or repercussions can go against an employee’s NLRA rights.

When there are specific rules that must be followed before a termination (and those are not followed). For example, there may be contractual stipulations with the employee’s union that outline steps that must be taken before any termination. If those steps aren’t followed, the termination may be illegal—even if it would have been fine otherwise.

When the social media post represents some other protected activity, like whistle-blowing, or protected reporting of something else, such as discrimination or harassment.

When the employer/employee are in a state that has other protections. Some states do not allow employers to fire employees for conduct outside of work, as long as the activities themselves are legal. This means that it would be much more difficult for an employer in one of these places to fire someone for conduct it finds distasteful that is still nonetheless legal. Some places also have protections in place for political speech.

*Source: HR Daily Advisor

There is no better time than right now to begin a corporate monitoring program and to be very aware of what is being said about your company and your employees online. A PR social media nightmare can happen in a millisecond and repercussions can last for years.

Are Background Checks Failing Us?

All one has to do these days is turn on the local news to hear about another teacher, coach or employee being accused of a crime of either drugs or child sexual abuse. If you are like me, the first question you think of is, “Don’t they do background checks?” What we are starting to find out, is yes they do. The problem is with the way in which the background checks are being done and by whom.

Let’s start with the basics and the must haves. The FCRA, or the Fair Credit Reporting Act, was passed in 1970 to ensure regulations of the collection of credit information. Additionally, The Equal Employment Opportunity Commission governs how this is to be done:

In all cases, make sure that you’re treating everyone equally. It’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.

Where the problem lies, in may cases, is with the actual agencies in which background companies receive their information. They may not be updated regularly enough. That in and of itself is a problem. But the list goes on…

You may be surprised to learn the following flaws:

The FBI offers a National Criminal Information Center which is great, as long as the crime was reported to the FBI. Beginning in 1967, it is dependent on records that have been provided by criminal justice agencies. It operates under a shared management concept between the FBI and federal, state, local and tribal criminal justice users.
Many times education is not checked out thoroughly which can be very detrimental down the road. This includes professional licenses.
They often don’t utilize the information from paid data bases.
Social Media is rarely included. I don’t mean the prospective employee gives up passwords. That should not ever be done in my opinion, however much can be gleaned by conducting a deep web investigation, without that information. A social media background check may reveal quite a lot about the character of the individual. Many HR execs are looking anyway, however hiring an agency is the safest way to go. A best practice is to never review your candidates’ social media profiles internally. This is beneficial because an agency’s review and social media report respect your candidate’s privacy and alleviates your employees from reviewing content that could lead to accusations of discrimination or violations of freedoms.

Lawyers Warn Employees about Social Media Use

“Watch what you say” is the advice being given to law students today due to firestorms on Twitter and haunting social media posts. Now “is the time to adjust your privacy settings,” Marta Ricardo, assistant dean and dean of career services at Columbia Law School told Bloomberg Law.

Ricardo noted that a student had a law firm offer “withdrawn because of what they said on Twitter.” Ricardo sits with law students and checks their social media presence, with their permission. Being cautious doesn’t mean that “you can’t have political views,” she said. Civil “discourse is fine,” and the tone used usually matters more than the content of what is said, Ricardo said.

“More and more, our identities as professionals and as people will be wrapped up in our social media presence,” Lauren Casazza of Kirkland & Ellis LLP in New York told Bloomberg Law by email. So it’s important to “think twice before posting and commenting,” said Casazza, who is co-chair of the recruiting committee in her firm’s New York office.

Kirkland’s guidance to its attorneys focuses on showing “integrity and common sense in everything they do, both within the legal world and on social media,” Casazza said. “An attorney’s internet and social media footprint is readily accessible by clients, courts and competitors anywhere in the world,” Casazza said. Kirkland’s law student associates are told to abide by the firm’s social media policy. They should consider if they would “want a post to show up on the cover of the newspaper, or be sent to their grandparents,” Casazza said. “We all have First Amendment rights, but we also must follow the rules and be mindful that how we express ourselves online will be with us forever.”

The Cold, Hard Truth

Law firms are facing new ethical and legal challenges involving cybersecurity and oversharing in their employees’ use of social media. To protect themselves and their clients, firms are instituting policies to ensure client confidentiality and proper representation by employees, even in their personal use of the platforms. “The most common concern is making sure that personal social media accounts remain personal, and don’t appear to bear the imprimatur of the firm,” Jacob Rooksby, who is to become dean of Gonzaga University School of Law in Spokane, Wash., on June 1, told Bloomberg Tax. “Everyone must realize that postings to ‘public’ accounts can reflect on the firm and its clients, even when profile pages indicate ‘all views are my own; retweets do not imply endorsement.’”

Social media offers opportunities to access a global audience, Kelly Phillips Erb, a tax attorney and senior editor at Forbes Media LLC, said. Many states have specific ethical rules for lawyers using social media that employees may not be aware of. It is important that a firm set expectations to protect its brand and its clients’ privacy. “There are mounting instances of attorney and judge ethical violations involving social media use,” Rooksby said. “Some state bar groups have promulgated advisory ‘rules’ and best practices that should be heeded. A single lapse in judgment can have devastating consequences.

Confidentiality

While social media might be great for sharing some things, any sharing of confidential information poses a very real threat to law firms. “The problem is that both attorneys and non-attorneys alike are so accustomed to sharing information via social media, from the inane (what I had for lunch today) to the personal (‘my divorce finally came through today!’) to matters relating to firm business (‘settled big case today’),” said Michael E. McCabe Jr., the founder of McCabe Law LLC in Potomac, Md.

“The ethical duties of client confidentiality and client loyalty are so fundamental to the attorney-client relationship, and yet with the ease of access and sharing of information via Facebook, LinkedIn, Twitter, or on firm-sponsored sites such as blogs and websites, it is important for attorneys to stop and think before they post.” Mayer Brown LLP has implemented social media policies to address such concerns. Marcia Goodman, a partner at the firm’s Chicago office, said employees should always be mindful “not to post or view material that infringes the intellectual property rights of a third party.”

“We want to ensure our clients know that we are not just mindful of their confidences, but that we ensure that we have reasonable protections in place to avoid violating their secrets,” McCabe said. “We have an ethical duty of technical competency, and that can be interpreted to include using modern hardware and software solutions to protect the firm’s valuable secrets.”

First Amendment Issue

Many employees, particularly non-attorneys within a firm, may argue that social media policies would infringe on their First Amendment rights, but tax professionals say the First Amendment may not apply in some cases. “Private law firms are free to enact policies that may limit the First Amendment rights of their employees, attorney and non-attorney alike,” Rooksby said.

This is because “attorneys hold privileged positions in society,” and law firms’ obligations are to the clients, Rooksby said, adding that the more “private” an account’s setting is, the fewer concerns a law firm should have about content. “Some people may believe they have a First Amendment right to post anything they want. Maybe so when it comes to the government control of speech, but law firms are private employers, and nearly all attorneys and non-attorneys are at will,” McCabe said, referring to voluntary employment subject to termination with or without cause or notice. “So it is very important that non-lawyers are covered under any social media policy,” he said.

Goodman said that employees should make disclaimers indicating that they aren’t speaking for their firm, client, or other entity. She also advises employees “not to make statements that could be construed as legal advice or as creating an attorney-client relationship on social media.”

Best Practices

Intellectual property attorneys agree that law firms should have a written policy to govern their employees’ use of social media. Scott L. Malouf, a social media lawyer in Rochester, N.Y., who helps other attorneys use social media evidence in discovery and litigation and helps organizations use social media to meet business and compliance goals, offered the following suggestions:

First, don’t view the policy as set it and forget it. Social media is too dynamic-platform services, user culture, and relevant legal requirements change quickly. A policy, ideally, should evolve in response.

Second, don’t aim for perfection. Addressing “every” social media scenario can become an overwhelming task because platforms are just too varied. A better approach may be to create a shorter, user-friendly policy and support it with solid training and concrete examples.

Third, remember the positive aspects of social media. Risk reduction, legal and ethical compliance, and creating clear expectations often drive social media policies – yet a policy shouldn’t undermine the benefits of social media.