In the beginning, there was nothing but you, the computer, and the soft glow of green text…

Less than 15 years ago, if you said the words “World Wide Web” to someone on the street, you would most likely receive a blank stare. At that time, a relatively small group of people knew how access information, or each other, electronically. If you were among those who embraced the digital revolution in the early 1990s, you may have done so through relatively obscure text-based e-mail programs such as “Dreams” (the much-loved system at Grinnell College) or online services such as “Gopher” (the influential text-based system developed at the University of Minnesota). Despite the limitations of these text-only systems, large groups of people, many of them young college students, started to see the potential of the digital world.

Even from its text-based beginnings, social connection was among the most powerful aspects of the Internet. Text-based bulletin board systems (BBSs) rose to what was at the time massive popularity, with sites such as the ISCABBS out of the University of Iowa boasting 1,000 or more users logged on at a time. These users were chatting, flirting, sharing stories and just generally getting to know each other through the soft glow of words on monochrome screens. Similarly, those more inclined to play fantasy games such as Dungeons and Dragons went “MUDDING,” a term used for logging into a text-based Multi-User Dungeon, Domain or Dimension game (a “MUD”). These were, of course, mere examples of a wide range of socially oriented opportunities on the Internet, with further examples catering to music, dating, sex, commerce and more.

In 1994, the Web forever changed with the introduction of Mosaic Netscape, a graphical interface for the Internet. If you were fortunate enough in the mid-1990s to have access to a computer that was both powerful enough to run Netscape and had a fast enough connection to the Internet to allow for its use, a new interactive world of graphics and text opened up to you. Online chat rooms began to replace the BBS of old, and in subsequent years we saw the rise of blogs, special interest Web sites, and, of course, social networking Web sites.

You have a new “Friend” request…

Today we seem to hear the term “social networking Web site” on a nearly daily basis. If we don’t hear that exact phrase, we do hear the prominent names: MySpace, FaceBook, LinkedIn, Friendster, Stickam, Digg, Broadcaster, Del.icio.us, Flickr, YouTube, hi5, Orkut, Windows Live, Yahoo 360, etc. The list of Web sites associated with “social networking” seems nearly endless, and so does the number of users of such Web sites. Depending on which information source you use, each of these Web sites boast upwards of 200 million registered users (MySpace), with most claiming at least tens of millions of unique users. Some Web sites, such as Facebook, have had an 80% increase in traffic over the past three months. Together, social networking Web sites account for over half of the top visited Web sites in the world.

Despite all of the attention these social networking Web sites are receiving, we rarely stop to ask ourselves, at the base level, what these Web sites really are and why they are popular. At heart, social networking Web sites are places where people can connect with each other on any number of levels and for any number of purposes. As a part of the services these Web sites offer, a user can collect a group of other users into a network of “friends” for further interaction. In this way, a user can not only log on and share information with others, they can log on and find other users they have enjoyed sharing information with in the past and wish to potentially share information with in the future. That’s it. No matter how many gadgets, gizmos or flashing lights the technology of today brings to us, in many ways our deepest desire is to connect to another human—albeit that on the Web, such connections have often been superficial, largely anonymous, and filled with false pretenses (much like your average blind date).

Consequently, there is no special magic behind MySpace or Facebook that cannot be traced back to the desire of its users to connect to each other. These Web sites have tried to capitalize on the so-called “Web 2.0” phenomenon, whereby users create and share information with other users, rather than a Web designer from on high controlling the content. To be sure, these Web sites do offer somewhat unique ways to connect to each other, whether it be by alumni relations, special interests or otherwise. In addition, without a simple design and ease of use, these Web sites would not attract and maintain their critical first generations of users. However, unless you were one of the early adopters of one of these social networking Web sites, if you ask yourself why you joined any one of these Web sites, your answer is likely to be “Because my friends, colleagues or clients are already users.” It is this viral aspect of the most popular Web sites, whereby everybody who wants to be anybody feels they need to have a profile, that accounts for the explosive growth in members over the last few years. People no longer strive for their 15 minutes of fame once in their lifetime; they want their 15 seconds of fame every day.

Everything old is new again…

So, now that “social networking Web sites” have become the most fashionable spot on the Internet to see and be seen, what are you missing out on if you have not yet joined the ranks of the profiled millions? In the case of World of Warcraft, the most popular virtual world on the Internet with some 9 million users, players are going on Dungeons-and-Dragons-like adventures. More generally, people on social networking Web sites are chatting, flirting, sharing stories and just generally getting to know each other through the soft glow of the computer screen. Does all of this sound familiar?

If the idea behind the so-called “Web 2.0” phenomenon is largely just users creating content for other users, is that really “new”? Honestly, not really. Modern social networking Web sites are, at heart, just the next generation of the BBS, MUD and other first-generation social networking platforms from the early days of the Internet. The social nature of the Internet has been and always will be here to stay. What has changed is the level of popularity of both the Internet and these social networking Web sites and the ramifications of our personal actions in light of new technology. Now, if you stop someone on the street and ask if they have heard of MySpace, the answer will likely be, particularly if they are under 25, that they’ve not only heard of it, they are a registered user of it and that you should check out their profile.

We are headed somewhere, whether it is a brave new frontier or a train wreck…

Much like the need to have a Web site is inherent for nearly every business in the United States (down to your local Chinese takeout restaurant), the need for social interaction on such Web sites is growing. In the coming years, if a company’s Web site, no matter how big or small, does not adopt some method for user-generated content, it will be seen as behind the times and not user- friendly. Commerce Web sites, such as Amazon.com, have steadily moved towards having more and more user-generated content, with user reviews, comments, blogs and the ability to search out such entries by a particular user (the equivalent of a “friend” added to your shopping social network). Similarly, service providers are critiqued on Web sites such as Angieslist and advertising themselves on Craigslist. Even small local entities that have strong social aspects to their business, such as bowling alleys, are feeling the need to adopt some aspect of social networking. Together, the rise of user-generated content and social networking promises to create a flood of individuals and businesses alike that need both technical and legal advice about hosting social networking Web sites.

Even professionals themselves, such as doctors and lawyers, are starting social networking Web sites, participating in such Web sites and increasingly expected to host at least chat rooms for their patients and clients. It is not hard to imagine that in the near future clients will demand, probably against the advice of their lawyer, the ability to anonymously critique service providers such as lawyers on the lawyer’s own Web site. These users will chat amongst themselves and share information, probably much to the chagrin of their legal counsel. If such an outlet for expression is not found on the attorney’s own Web site, it will be found elsewhere on some other legally oriented, or business oriented, Web site. As the current younger generation grows older, they will bring with them a sense that information should be free (a common mantra heard across high school and college campuses today, especially in relation to file sharing), and information will flow regardless of the consequences. When considering issues related to social networking, these inherent predispositions of future generations and customers are central to the discussion.


You have no idea what your kids are up to…

Once, in a quaint, distant past, parents were concerned that their children might be viewing pornography on the Internet. Those children were, of course, doing just that, and parents reacted with shock at the 21st Century version of stealing Dad’s Playboys. The reaction was to install internet filters, have talks with the children, move computers to common areas to monitor usage, and generally shake fingers at sons and daughters for being naughty. It has never been clear that any of these solutions really worked, but they gave parents a sense of safety in a confusing new world. Allow me to help shatter that sense of safety with the modern reality.

Preliminarily, parents of today need to consider that computers and digital recording devices are everywhere. People can access the Internet not only from the monitored home computer but at work, school, in countless shops and on vast numbers of mobile phones. In fact, teenagers of today not only expect their own mobile phones, they also expect to limitlessly text anyone they want, send e-mails and surf the Web. Considering moms and dads have set the standard with their own Treos and Blackberrys, we can hardly be surprised that our children want the same connectivity. Children of today are also used to having with them at nearly all times a digital camera, video recorder and audio recorder built into their phone or their pocket-sized camera. We are all surrounded by hundreds, if not thousands, of such devices every day, raising the possibility that unless we are completely alone, we could be recorded doing whatever it is we are doing at any time. This constant electronic scrutiny is not the Big Brother of our government but instead, quite literally, our little sister with her iPhone. These budding photographers can, in turn, use their Internet-enabled device of choice to instantly share their recordings with the world on any one of the social networking Web sites.

The ubiquity of Internet-enabled devices and digital recording gadgets augment, but do not replace, parental concerns about what is going on in front of computers in the home. Text chats with anonymous people continue but are enhanced with file sharing of photos, videos and other personal information. Webcams allow people to broadcast themselves, and software is readily available to record anything seen on a computer screen. Children and adults alike flock to photo- sharing Web sites and upload countless photos of themselves, their friends, and their family, only a small portion of which is strongly protected by any password or other barrier to the public.

When viewed as a whole, this massive amount of personal sharing on the Web seems overwhelming, and frankly it probably is. No amount of careful parenting can stop a child from posting, or having posted, a compromising story, photo or video. The best we can do is minimize the risk and perform damage control. Moreover, adults are increasingly facing the reality that they too are presented on the Web, whether they like it or not. In the near future, nearly every person in the United States, if not the entire developed world, will have some compromising piece of information about them on the Internet, and within the decade it is quite likely such information will be easily located by the general public through advanced search engines.

But I am anonymous, right?....RIGHT??!!

One of the most common misconceptions about the Web is that if you sit alone in a room with your computer, whatever you share over the Internet is anonymous. After all, the room is dark, the door is closed and nobody even knows it’s you online—or so we tell ourselves. Pushing aside for a moment the technical ability to trace Internet connections, people are rarely completely anonymous. If you upload a photo of yourself, it is a photo of you. Your sense of privacy relies on nobody being able to find and associate that photo with you. Sometimes you share the photo with close friends and family that you trust, and sometimes you share it with complete strangers thinking that they can never trace the photo back to you, your family or your job. Either way, you feel you are safely, and privately, sharing yourself with others.

This sense of anonymity when there is none creates an interesting dichotomy of users seeking privacy on the Internet. A vast number of social networking Web sites have users that largely use fanciful user names. At the same time, those same users fill out amazingly detailed information on their profile and share personally identifiable information during chat sessions. The thought of the user seems to be that if they do not use their actual name (a Rosetta stone to our privacy in our own minds), they may be anonymous. Other Web sites, such as Second Life, have users that almost completely absorb themselves into an avatar, which may not in any way resemble the actual user. Users of Second Life typically want a complete disconnect from their own reality, and thereby safeguard their anonymity to a point where only not participating would seem to be a greater safety precaution. Still other services, such as Facebook, are premised on people using their real names to connect with people they know in the real world. Privacy in Facebook is centered around the user’s ability to select who will see the user’s profile information.

Unfortunately, three technological- and business-related phenomena are working against any user having anonymity no matter how hard they try to preserve their privacy. First, the Web is forever. Organizations such as The Internet Archive and Google are storing and indexing everything on the Web. Although there are ways to supposedly prevent the storage and indexing of some Web sites (through the use of robots.txt), such opt-out systems are notoriously unreliable and unknown by the average user. As a consequence, the photo or comment you uploaded years ago and delete today is not gone—it likely continues to exist in cyberspace, accessible to those who know the relatively simple way such information can be retrieved.

Second, businesses have business models that generally seek to make a profit, and information is money. Web sites such as Facebook have recently come under fire from users and even political action groups such as MoveOn for posting the shopping habits of some users for other users to view (reportedly ruining more than one Christmas gift surprise). Of course, behind the scenes, these Web sites have been sharing massive amounts of information among various companies for years—it is just that only recently have they shared any portion of that same information with the public and thereby caught the public’s attention.

Third, there will soon be a day where images are searchable for their content. Presently, if you wish to find a photo of a particular person using their name, that photo will not come up in a web search if it, or the text around it, is not tagged with the person’s name. New products such as Microsoft’s Photosynth promise to correlate dispirit images of objects and people in a massive, potentially world-wide database. In other words, if you take a photo of a friend and feed it into the system, it will find other photos of that person based on recognizing the person’s face or other distinguishable characteristics. Imagine, then, a world where the carefully manicured photo of a business associate on a corporate Web site is automatically linked to the college photo of that same person, uploaded by a friend, and depicting that business associate drunk, half naked and rolling a keg into a frat house. This is the future of privacy on the Web.

Does anyone even care about privacy anymore?

People tend not to miss things until they are gone, and even then only when their absence has an impact on their lives. This sad reality is particularly poignant in relation to privacy, where a common legal test for privacy protection is whether the individual has a reasonable expectation of privacy. We tend to lose our privacy rights in the United States if we do not proactively protect them, and very little exists to protect the individual on the Web. A small mishmash of laws, such as the Child Online Protection Act, attempt to shield younger users from “harmful” content, but almost nothing prevents a person from posting a truthful comment or photo of you on the Web. More importantly, despite laws, the Internet has a life of its own that is difficult if not impossible to regulate (see the prevalence of spam, gambling, child pornography, and fraud on the Web despite laws and regulations).

Consequently, we are very much at our own mercy when it comes to online privacy. This begs the question: “What do we intend to do with our own privacy?” Many individuals on the Web do prize their anonymity and will not show their face, much less their identification, to other users. However, other users, particularly children, do not implement such protections. Some find out later in life the hard way that employers and other individuals scan the Web for embarrassing information on candidates (the media is filled with accounts of lost jobs, failed academic careers, and embarrassment in front of family and friends). Other individuals seem to simply not care about privacy, at least so long as nobody they know knows what the individual is doing.

For example, consider Stickam.com, where users can go online in a social networking setting to broadcast themselves. Men and women alike can do whatever they like in front of the camera. Although adult or offensive content is monitored and prohibited, it is inevitably displayed. Does a 22-year-old woman login and dance half naked before a dozen strangers because everyone is, at heart, anonymous to each other and her ultimate personal privacy is safe, or does the woman have no sense of privacy to begin with? One might ask the same question of hundreds of people who participate in “Girls Gone Wild”-type videos. Does the man who blogs about his deepest fears and prejudices think nobody is reading, or just that nobody of consequence is reading and realizing who is the author? Do we present one side to the world that we know and that knows us, and present another side, the side we reserve for ourselves, to strangers in the night? There is no definitive answer, but once again everything old is new again—Alfred Kinsey’s 20th Century study of society seems to have renewed relevance in an age where we are revealing our sometimes hidden inner selves not to professional interviewers but to the “anonymous” world.

These deep social and psychological questions linger at the same time privacy laws are failing to keep up with technology. As we are distracted struggling with our personal online identity, we are slowly but surely relinquishing what observers may see as a sense of privacy. Why should Congress write a new law to protect someone who has a video of them drunkenly dancing lewdly at a bar? Shouldn’t the patron have thought better of their actions before taking them? The answer is, of course, that for millennia patrons have not thought better of their actions, but nobody until the last few years had a camera phone ready at all times to take and post video of the embarrassing moment on the Web. Our own behavior is now, moment by moment, etched in history for better or worse, and amplified around the world for the viewing pleasure of the “anonymous” and well-acquainted alike. Meanwhile, as a society we show little momentum in changing the laws to protect privacy, or, better stated, to protect us from our own, often fleeting, poor decisions captured on the Web.


Protect yourself from your users…

The golden rule in running a social networking Web site is to recognize the users can and will take whatever you offer and run with it, leaving you to protect yourself against any and all possible occurrences. Intellectual property violations, harassing behavior, inappropriate content, hacking, criminal activity – these are a mere sampling of what can occur on your social networking Web site, and whether we like it or not, such activity is in some small way responsible for part of the growth of such Web sites. This is not to say that such activity should be condoned or meagerly countered. Web site owners can and must protect users and society from other users. Any inkling of a failure to do so attracts major media attention and, as has been the recent case with many social networking websites, investigations into child protection by one or more attorneys general. As Jay Westermeier describes in the companion Terms of Use article, proper terms of use are critical to giving a social networking Web site the leeway it needs to protect its users and enforce a desired set of rules.

How do I make any money in social networking?

When you mention social networking Web sites, often dollar signs appear in people’s eyes. Google purchased YouTube for $1.65 billion. Microsoft recently invested $240 million in Facebook, giving it a theoretical $15 billion valuation. These numbers stagger the mind, especially when many of the social network Web sites were developed just a few years ago in the basements and dorm rooms of their young creators. So, how can you make money off of social networking?

The economic business model of social networking Web sites has been the hot topic of debate for several years. Many social networking Web sites, such as YouTube, appeared on their face to not only be making no revenue but also carrying massive potential litigation liabilities for copyright infringement. So, then, why did Google pay $1.65 billion? Arguably the reason is that there is vast potential in YouTube, both for advertising revenue and revenue-sharing deals with content providers (another theory is simply that Google did not want Microsoft to have YouTube and was willing to pay whatever it took to take a stab at its competitor). Regardless of the deal reasons and mechanics, a built-in audience of millions of users makes businesses salivate to purchase social networking Web sites.

For many developers of social networking Web sites, their sole economic model seems to be a desire to be acquired in the near future by the Googles and Microsofts of the world. As more and more social networks come online, not all such networks will be acquired for a profitable price. If social networking Web sites do not develop a viable subscription, advertising revenue, or joint revenue sharing economic model, they will suffer the same fate as voluminous numbers of failed dot coms.

Any Final Words of Advice?

Social networking Web sites are the next evolution in human interaction on the Web, but they are not the last. Whether virtual worlds or webcams take over the text, music and photo world of MySpace is yet to be seen, but there will be evolution in the technology. We must be prepared to see and explore such new technology, and consider how it alters our social world. If we do not, we are doomed to a life of plugging holes in the dyke trying to stop the inevitable flood, particularly as to privacy issues.

What will not change is human nature, and social networking helps amplify, in an often global community, each human tendency. As a society we should not fear using such Web sites, nor can we ultimately ignore them, but we can use them wisely and to our benefit instead of our embarrassment. Our children, in particular, are vulnerable to a host of inappropriate behavior both viewed and exhibited by them, but we cannot build an impenetrable wall to protect them. We can sit down with children to educate them as to what is right and what is wrong, what is helpful and what is harmful, and how they will reap the benefits or pay the consequences of their online activity. In short, we can teach them the morality and common sense of old with a knowledge of the pitfalls of the future.

Those companies that have no aspect of online social networking to their business, and those who counsel such companies, are about to be pushed into unfamiliar territory. Consumer demand and competition will inevitably require some form of user created content on or about your company. Those who do not afford customers an ability to comment and socially network on their Web site will find such commentary and social networking will still occur, just somewhere else on the Web. The Web 2.0 movement is very much a “lead, follow or get out of the way” proposition, and great rewards await those that are at the forefront of the technology and stay ahead of the pack. Whether you are a small mom-and-pop store with a loyal customer base or a major television network with millions of viewers, your customers have a voice on the Internet, and in growing numbers they want to use it with or without your help.

For those who run social networking Web sites, the future is bright if you can attract a critical number of users and adopt a feasible economic model. You are increasingly being seen as the online daycare of the youth, hence an increased need to police and regulate the activities on your Web sites. Furthermore, while you “own” the Web site, the content is added by your users. Your users see it as theirs, not yours. Your users also, despite your terms of use and privacy policies, largely have no clue what power you hold over their personal information and only notice an invasion of their privacy when it is public and painful. Use your power wisely, or the very users you depend upon may very well grow up, figure out if and when you can be trusted, get tired of what you have to offer, and decide it is time that they, and their friends, find the next best thing on the Internet.

Prepared for Practicing Law Institute Webcast