States Seek to Clear Legal Hurdles for More Social Media Use

The NASCIO and the National Association of Attorneys General reached a deal with Facebook, resolving a series of legal issues identified by states and are available for immediate use, NASCIO said. The group hopes to finalize an agreement with YouTube addressing similar issues over terms and will go to other social media providers, said Charles Robb, NASCIO’s senior policy analyst. Some social media providers’ terms might pose problems of indemnification, choice of law and jurisdiction to state and local government agencies, he said. Most states can’t indemnify themselves, under the terms of their constitutions, but the standard terms of service from the social media providers often require states to indemnify themselves, he said. It’s a bigger issue in some states than others, he said. The agreement with Facebook removes legal uncertainty around current and expanded use of the tools, he said, noting that many states have delayed adoption and haven’t taken broad advantage of social media tools.

Beyond terms of service, social media adoption still poses challenges to states in the areas of security, open records, privacy, branding and accessibility, so NASCIO is continuing work in those areas, primarily through its Social Media Forum and other workgroups, Robb said. Legal issues were among the most important barriers to broader social media adoption, said Doug Robinson, NASCIO’s executive director. The agreement with Facebook would allow broader and more appropriate use of social media tools like Facebook by state governments across the country, said Kyle Schafer, NASCIO president and West Virginia chief technology officer.

Colorado’s Office of the Attorney General, which led the year-long negotiation with Facebook, will soon start its own Facebook page, a spokesman said. State and local governments had been concerned that under the previous conditions they would have to pay the company’s legal fees if Facebook were sued because of content posted by an agency onto the website, he said. The new terms would strike the indemnity clause except to the extent indemnity is allowed by a state’s constitution or law; strike language requiring that legal disputes be venued in California courts and adjudicated under California law; require that a public agency include language directing consumers to its official website prominently on any Facebook page; and encourage amicable resolution between public entities and Facebook over any disputes. The Washington Attorney General’s Office co-chaired the negotiations. The 13 other states participating in the negotiations were Alaska, Arkansas, Connecticut, Delaware, Idaho, Massachusetts, Mississippi, North Dakota, Ohio, Oklahoma, Oregon, South Carolina and Utah.

The move mirrors an agreement between Facebook and the federal government in 2009 that led to a surge in federal agencies on the website, a company spokesman said. It’s pleased to have been able to work with state and local regulators to ensure that they can have a presence on Facebook, he said. The move brings state and local entities in line with the federal government, an industry official said. State and local governments increasingly use Facebook to improve their effectiveness, he said, noting sites like the Ohio Secretary of State’s page are a resource for citizens looking for election information, economic data and state assistance programs.