April 30, 2010 By Karen Wilkinson
Before creating a Facebook page of its own, the Colorado Attorney General's Office (AGO) consulted its lawyers on the potential legal ramifications of doing so. Once the social media giant's indemnity clause was reviewed, the AGO chose to delay jumping aboard that particular social media bandwagon, a spokesman said.
That was six months ago. Renegotiating that clause -- which binds users to pay Facebook's legal expenses if any posted content results in a lawsuit -- remains an ongoing effort, said AGO Communications Director Mike Saccone. But in the meantime, the AGO has warned state agencies of the increased legal liability paired with a social networking presence.
"We've told entities with Facebook pages to stay put and maintain status quo," Saccone said. "Those who aren't [on Facebook], we've advised against starting new pages."
Grappling with such issues will likely be one of the greatest challenges state and local governments face when joining the online social media world, as there is no one-size-fits-all approach to renegotiating the indemnity clause, experts say.
While the federal government has recently had success renegotiating its terms of service agreement with Facebook and other sites -- the U.S. General Services Administration led a coalition of agencies to negotiate agreements with each new media provider that can work across government, allowing federal agencies to choose to sign the same agreement -- states are challenged with 50 new sets of legal contexts and an almost exponential set of risk assessments, according to a National Association of State Chief Information Officers (NASCIO) newsletter.
"There's a lot of uncertainty, but we're looking to knock down the barriers to more broad use," NASCIO Senior Policy Analyst Charles Robb told Government Technology recently. "Use preceded solutions to these problems -- in essence the horse is out of the barn."
While Colorado may be in the minority with its guarded approach to Facebook, its concerns raise valid risk-related issues, Robb said. In hopes of providing more solid information on renegotiating agreements and examples of best practices for states, NASCIO is working to complete a brief related to the subject, Robb said.
"Part of the problem is we don't have a quick way to see, judge or measure how broad usage is by state," he said.
In general, states haven't had much luck renegotiating terms of service agreements with social media providers, Robb said, with YouTube being the exception. And, as pointed out by Saccone, Twitter doesn't have an indemnity clause, making its legal implications a nonissue.
In an e-mail exchange with a Facebook spokesman, the social media giant said public agencies' biggest concerns when considering creating a page include "legal issues and users making comments on pages that are considered mean or mean spirited." The spokesman, however, would not elaborate on specific "legal issues" and would only say that Facebook is aware of the Colorado AGO's concerns and is looking into the matter.
There is no timeline as to when the Colorado AGO will resolve the issue, Saccone said, but the hope is that it's sooner than later. In offering words of advice, he said be aware of the terms and conditions agreed to when signing up as an individual or agency.
Whether the risk of maintaining a public-sector Facebook page outweighs the benefits, remains to be seen. Policy Analyst for the Center for Democracy and Technology Heather West recognizes the potential legal liabilities, but sees governments' use of social media as an evolving space as far as best practices.
"It's very helpful to think of this as simply another medium for communication rather than a new technology," West said. "Everyone seems to be doing it in good faith and in the spirit of making these things work well, but it certainly is an evolving process."
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