This is my second Office 2.0 conference, but this year I was asked to speak on legal issues that affect application and SaaS companies. The panel was pretty unstructured, without presentations. However, I took my thoughts on legal issues that affect application and SaaS developers and created an interactive presentation.
One of the legal issues that came up, and comes up all the time, is “how discoverable is on-line data?” The answer: completely discoverable. The fact that data is online, or in “the cloud” (a term I hate), has no bearing on its discoverability. Indeed online data is a fatter target for litigators. More than paper, or even email, online data is richer, in terms of information, than other types of evidence.
Let’s look at a Twitter feed. While I don’t know how Twitter’s backend works, it is fair to guess that the data retained by Twitter includes IP address, location, the tweet, visitors to the feed, followers, and marketing profiles of the Twitter member. Then take a business dispute involving one of your employees who uses Twitter. All this information, to the extent it’s relevant, would be very interesting in the litigation, and would contain much richer facts than paper. Indeed, because Tweets are public, a court would likely hold that you have a lower expectation of privacy than other types of information. All this is not to say that Twitter is bad, or some sort of litigation hole that businesses need to plug, but that online information is discoverable – and necessarily so.
Another question that came up is what are the ramifications of applications like Facebook, Linked In, MySpace as used in the workspace? This issue often comes up in the context of employment law. So can you look at someone’s Facebook page, and if you see something that you feel disqualifies them for employment, use that to deny them employment? I’d say a qualified yes. Really, at base, if you could use other public information to legally make hiring decisions, you can use online data.
One of the issues that follows on the Facebook question is how can a third party vendor be liable for the acts of its customers. So, for example, if one of your customers misuses your blogging tool, can you, or might you, be sued. In some cases the answer is yes. While you are not generally liable for the acts of your customers, you may be liable if those acts were reasonably foreseeable, and you did nothing.
One of the ways to mitigate your liability, and actually bring in potential customers would be to help your customers understand how they might minimize risks themselves. If you know that your blogging tool is often used in a corporate context, it may be helpful to provide your customers with suggested blogging rules. These not only allow you to be proactive, but may in fact facilitate customer retention simply by deepening the connection you have with your customers.
About David Snead
David Snead is a lawyer whose practice is focused on internet infrastructure providers. In his eleven years in this practice, he has represented clients including multinationals, middle tier hosting companies, and two guys, a server, a T-1 and a huge MasterCard balance.
A long-time WHIR contributor, David Snead is the Web hosting business's best-known legal expert. Through his WHIR blog, he offers a credible legal perspective on both specific actions in the Web hosting business and general developments in legislation.
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