 ThinkTek Hawaii. Civil engagement lives here. Welcome and aloha. My name is Mark Shklav and I am the host of ThinkTek Hawaii's Law Across the Sea. Today my program is titled The Anti-Social Media. And my guest is Elijah Yip. Elijah is a Hawaii attorney and a partner at the law firm of Cade Shuddy. He regularly counsels his clients on internet and information technology law, a new area of law for us older lawyers. As we all know sometimes the internet however is anti-social. It seems like internet trolling and cyberbullying are in the news daily from the president to celebrities to ordinary citizens. Today my discussion with Elijah will focus on internet trolls, cyberbullying, and what can be done to address these internet issues. Welcome Elijah. It's good to have you here. Thanks Mark. It's a pleasure to be here. Thank you for being with us. Okay what is this new area of law? This internet technology and what's all that about? Tell us old lawyers what's that Sure. Well the internet is not a recent invention but in the last maybe 20 maybe 25 years it has become progressively part of everyday life and with that it's really changed the way we live, the way we work, the way we play. So the issues aren't really new but the way it comes up, the way it manifests and the issues particular to the internet, the technology of the internet, the intersection of that and the law that's where I deal with. That's what I deal with. Okay and of course yeah you're right. I mean we see everybody walking along the streets looking at their hands with whatever device they have there. Yeah the smartphones are basically an appendage. Right okay so we know we hear the term social media. What is that? How do you define social media? Sure well we know what media is. I mean we're very familiar. We all pretty much own a TV or if not that radio so I think the concept of media is pretty self-explanatory but what makes it social is that in this medium in this form of broadcast or publication or expression you're also connected to other people. You're connected to people across the world and the internet makes that possible and that's what makes it social. Okay yeah that's interesting. You're connected with people not just in front of you but all over the world. Wow that's very powerful. Very immediate too. So it's not just like publishing a book and passively having someone read it. Someone could read something you publish on the internet today and then respond to you immediately about it. Yeah okay that is a very interesting concept and way to think about it and I guess that is what it is. Now my reason I want to talk to you is because I'm not sure it is so social. It seems like what's called trolling and cyberbullying. I've heard those terms a lot. What are they what do they mean and is it still part of being social? It is unfortunately because the idea of being social is we're talking about relationships, human interactions and there are positive human interactions and negative ones in you don't need the internet. And that's all social. And that's all social. So it's not necessarily just friendly. No not just friendly I mean I wish to Facebook or Twitter were just friendly but that's not the case. And so when you're talking about cyberbullying again we're familiar with the term of bullying that happened in semi-nets that's centuries I mean it's just the beginning of mankind. There's bullying I think. But now it's cyber because it's being done in the context of the internet. It's done online. And what's trolling? Oh trolling yeah trolling trolling is a term for it's basically a baiting it's basically baiting it comes from a fishing term actually. When you're trolling for fish you throw a bunch of you know lines on the back of the boat with bait and see what you catch. In the context of the internet what happens is people throw up inflammatory comments and see who bites see who reacts to get a rise out of trying to get a reaction exactly from people. Exactly that's trolling. Okay and is it also an attempt to somehow hound people or go after them or is that what trolling term is used for? It can be and it certainly can lead to that. I mean I don't know that they're very technical defined terms really but trolling can lead to cyber stalking or harassment and cyber stalking is just where you would use the online technology to repeatedly harass somebody. So it's a sort of like stalking except you're doing it again through the internet. Okay now you've been advising clients in this area right and how did you get involved or how did you yeah what what brought you into this area of law? That's a great question. Well two things I'm I consider myself a techie you know I had a computer at a young age and I've just always enjoyed tech as a personal hobby but the other the intersection with law is that I have represented media companies. Okay. Our firm is one of the you know one of the people around town one of the firms around town that do media laws we've represented papers and broadcasts etc and after a while of doing that what I realized is that a lot of those clients those types of you know broadcasters they were going digital. Right. So these issues. Times change. Times change right. From newspaper. Exactly. Yeah a lot of newspapers are dying out they have to go digital you know they put up paywalls and whatever there are other just unique issues that come with being not just a publisher but an online publisher. So that's kind of what sparked my interest in that area and it's grown beyond just media law. I mean it's all things internet at this point so I deal with privacy issues as well and you know a whole bunch of other things but that's how it started. Okay. Alright. So that's your interest that's how you got involved in it. Now there were I mean we talked a little bit about trolling what are some examples of trolling and cyberbullying. What are some basic examples of what what what those things are in reality nowadays. Yeah yeah you actually you go to any you go to any popular newspaper site and you look at the comments section. Okay that and you'll find a lot of trolling there I think a lot of good examples of there where people would just make comments that are not really even germane to the article. Okay. They're just they're just inflammatory you know attacks against other people against other people or you know this article is about putting up a new affordable housing center and then the next thing you know there are a bunch of comments about rail for example. Articles nothing to do with the rail right but rail is a hot topic you know whether you're for it or against it it's a hot topic. So just by putting it out there you're seeing who's going to bite and then you start a conversation about that and you go after a person perhaps based on their point of view and you know the trolls get or the people who are trolling just get a rise out of that. Well I mean okay I mean why why would you do that. Yeah you wouldn't know. Yeah I think for some some people just get a high some kind of adrenaline rush if you will from seeing others getting agitated. They like that emotional response I think. I think for some it's attention they like to get attention they even if it's negative attention the fact that they're they're engaging with someone you know honestly I think some some are it's a lack because of lack of attention they're lonely you know they want some kind of human interaction. Okay. You know I maybe I'm speculating too much. Where this is going is you're saying like this is their social interaction. Yeah I think it's right that's right that's right and this social media gives me an outlet for that. Okay and how about the cyber bullies same type of analysis. Yeah same thing I mean think back to the time when we were in school you know and we see bullying in school before the cyber part got added on that's that's always been the case so why do bullies do what they do it's it's a power play you know it's a way to kind of raise themselves up and push somebody down. Internet makes it easier to do that. And it seems like recently we've had a lot more of it out there it seems like there's been more examples you've had some you you told me that you get calls all the time right what I mean without going into anything that's confidential or anything like that but what kind of calls do you get I mean what what are people calling you about. I get calls where people will say you know my my privacy rights have been violated because this person puts something up on the internet I get a actually I get quite a few calls on negative reviews with like Yelp or you know Amazon or even reviews from a business right and they complain that this person or this customer made very negative comments about their business online can I do anything about it it's false et cetera and and yeah a lot of the calls kind of go that way yeah what can you do yeah what what if you're out there on the internet and you're putting yourself out there I mean do you have any right to object and I'll give you a lawyerly answer it depends of course but but the I think the reality is that a lot of the time no the answer is there's not much you can do at least in terms of the law the law can help only so much there are probably other strategies besides the law to manage those types of situations but the law only goes so far and I'll probably get to this in a moment but because of the limits on government regulation of free speech there's only a limit to what you can do or what you can get the courts to do in reaction to that kind of behavior more often it's goes back to the social part of it it's really more of a PR issue it's really more of a management or customer relations issue rather than a legal issue in other words rather than going to court to get an injunction the better response might be to reach out to the customer and see why are they really so angry and perhaps address it that way think of a different strategy yes that's right and that's kind of what you do that would be your advice depending on the circumstances do you ever I mean what are some of the options when you're when you're attacked but you know there that that one I like is that's like a PR type of right response what other things can you do well if it's extreme I mean if it's if it really rises the level of say defamation and meaning that it's it's a false statement that damages your reputation and you can prove that it's false and if it makes if it's worth it economically because of course it's not cheap to take the legal route but if it if it's high stakes enough then yeah you can go to the courts for relief and try to get them you know to get injunction for example to stop the person from making these comments or remove them but it's the standard is pretty high you've had some cases yes I've had some cases give us some examples of the cases that you've had that they're out there sure one of the early cases and when I tell you what which social network it is you'll you'll get my drift one of the early cases involved a client that went to Vegas to party and met a met a couple of people went back to his place and after the any met a girl and during that trip when he got back he found someone posting on my space my space that was the facebook of about 10 years ago right but someone uh he didn't know this person but they posted on facebook of my space alleging that he raped one of the girls that he he met in the wild and he denied is that I didn't even have any sexual relations with that person um and so they uh just out of the blue just out of the blue yeah just out of the red and I didn't know the person didn't know the person was not even in Hawaii wow was uh I believe it was in Oregon um so we he hired us and we represented him when we went to federal court and got an injunction against the author of the of the myspace account to stop and we settled the case and it was amicably settled but uh but yeah he was really cut out of the blue that's amazing and um have you what other type of cases have you have you had so that you can actually go and do something about right well you I've had a case and and this also settled so I don't think it went to the point where you know the court but if it did um this was an invasion of privacy uh case where someone was um videotaped uh intimately with somebody else without their knowledge all right and and then that you know the the sex tapes if you will um and and that there was a threat that that might get released um how do you deal with that uh well uh there are a couple things generally not yeah generally not without that case but yeah I mean generally what you one of the things you can do of course is to call law enforcement because in some cases that would be a violation of criminal law so you can go that route uh but you could also you know hire attorney and and demand that they not release that and that if they do there will be sort of consequences they'd be liable for damages etc and um if they don't comply then the next step would be to file a lawsuit file lawsuit and sometimes uh those work and sometimes they don't correct right okay we're going to take a short break right now okay and then we're come back and I want to talk to you about some recent events recent cases sure that have been in the news and get your opinions on those okay okay all right thank you hi I'm Ethan Allen your host on think tech's likable science show every Friday at 2 p.m we delve in the magical magical fascinating world of science how science applies to your life why you should care about science what impact science has on you and on those around you why you need to know some science it's a fun interesting painless way to learn some good science that you can use see you there back with Elijah yep and we are talking about the anti social media my name is mark schlaufe my show is law across the sea on think tech Hawaii and uh we've been getting a real education on uh well cyber bullies trolls different cases and I want to go into um a little more recent events uh and kind of work our way up to that uh you know when when you go on the internet um are you just giving people a license to come after you I mean can can people just do anything they want is that or say anything they want no of course not no you don't give up you know your your rights your rights don't uh you don't leave your rights at the login page if you will uh no of course they can't um there are of course there's of course more exposure I think to bad behavior um you know it's the kind of environment you go into of course going to be exposed to but there there that doesn't mean that anybody can do anything they want to you well I mean we're in this new age right we're in this age that you talked about where we're all staring at our hands it is social uh what are your thoughts should we go on it yeah should we go on it or should we just say hey I'll just read a book instead right yeah yeah there's there's only options right I mean one reaction would be to say this is just scary stuff and I'm going to stay off of it and some people do do that and that that's fine that's their decision I think where I come out on it is you have to think of social media as a tool and a tool is not it's not per se bad or good it's a tool it's how you use it it's exactly it's how you use it and also being um and I think a lot of wisdom using applying a lot of wisdom to how you use it and the the risks and benefits of using it and one of the ways you get wisdom is knowledge you know to be to keep up with it to understand what it is that you're getting into and again the risks and benefits okay so I want some advice and knowledge you know I see people all the time using it and young people especially and I've heard many times about them having a negative experience what what what somebody sends you an email or uh goes on your facebook page and posts something nasty sure what do you do how do you address that what what what's your advice I think the best response would be to ignore it and to not take the bait again you know a lot of times when people are doing that they're trying to bait you into a response that gives them some kind of high and I'm not going to give them that um that pleasure I'm not going to respond and and I think a lot of times that they'll just fade away because a lot of these trolls they kind of do a shotgun they think they do a lot of these post-seal reacts and then they go after those who react if it escalates you know then it gets a little concerning and then I might need to take some more protective measures but like like like what yeah I mean but like blocking a person's account from accessing my own I think privacy settings are really important as well understanding how to manage your privacy settings online every account has ways that you can manage who gets a c and who gets your posts you know your what you share online and and also who gets to interact with you so understanding those mechanisms and taking advantage of them I think are an important step well if I if I'm a parent and my young child oh young I mean 10 12 13 around that age where they're all on the internet they're all talking with their friends gets something from some person yeah that's that's negative do you just ignore it you report it I mean yeah what do you do because of the content I mean if it's if it's very very disturbing and graphic then I might want to take the step of right away of reporting it if it's more in the flavor of bullying around the playground except now it's online you know I might advise my kid ignore this guy or nor this this girl and hopefully they go away you know that's that's how I dealt with bullies when I was younger so it kind of depends you know on what the form of bullying is and what the content of it is okay so it's a case-by-case it is case-by-case but I think as parents I think it's important to understand what your kids are getting into and to understand what they're using I mean even the particular channels because you know in whether it's Facebook or whatever there are different ways you can use it and the kids pretty sophisticated they know the technology better than you better than you do so I think it kind of it's our job as parents see if you're a parent to all to learn to be involved be involved not ignore it absolutely yeah so I that's that's your advice to parents is find out what's going on absolutely I mean it's just like TV the advice before with TV is watch with your kids and then you know talk through what you've watched and I don't think there's any exception for social media right okay recently in the news lots of cases I mean president of the United States blocked certain people from trying to respond to his tweets because they were saying things he didn't like right okay and apparently the court said you can't do that right but didn't force them not to do it right that's right so what was that case yeah that yeah and I just got to say that this this administration and I mean the times of the times were in give us just fascinating situations but what happened there was that the the court in that case said that the Twitter account you know we know the president loves to tweet that that that was actually a limited public forum that was a public forum and so in First Amendment law there are certain places sort of spaces that are meant as a place for everybody to comment to express themselves and the First Amendment protects that so by virtue of him being in the office of the president the judge reason that that account was basically a public forum sort of like a sidewalk so by limiting people from responding to his tweets you're closing you're like closing off the sidewalk and that is a no-no under the First Amendment against the Constitution against the Constitution okay so another case right here in Hawaii yes representative uh Andrea Topolo was able to get a TRO temporary restraining order against somebody correct for kind of sounded to me like kind of doing the same thing yeah what was that about right right um well in that case and to my understanding of and I you know I I know what I know based on the news reports no personal knowledge but there were allegations that she was the target of a lot of online posts advertisements etc that according to her petition wasn't just offensive but got to the point of threatening including according to her petition threats against her family and also certain of harm of type of physical right and also apparently again according to the petition that she received death threats um probably anonymous but um I'm not sure if they were or not but probably anonymous and I think that's what pushed the court over the threshold to say you know no that's that's not protected we we can stop that so on the one hand it was like a political speech for the president and he couldn't forbid those because they weren't threats on this other hand and we have a law in Hawaii right about that we do the court said well this goes too far yes okay yeah but but it's kind of a balancing act oh absolutely it's and that's why the the Topola case was another fascinating study in kind of the intersection of a number of streams of law first amendment law political speech but also true threats the the idea of true threats and she's running for office she's running for office and and it's it's just uh you know it's it's a very uh it's a I would say it's a mess necessarily but it's it's not easy to parse out it sounds like case by case is the way really we're dealing with it right now it really is and you know honestly even the the United States Supreme Court has not come out with very clear rules okay our replies let's talk about Roseanne okay I mean she put something on that was held by her employer to be a racist comment right sounded to me like it was to and but another case that I that I read about where somebody put some very nasty stuff about his employer yeah didn't get fired she got fired right how do you again you know yeah yeah so two two things I want to point out there there's kind of there's kind of a common misconception that the first amendment protects all speech and you can't because of the first amendment everybody has a right to say anything and no one at all can limit that and that's not true because the first amendment or if it's the government from regulating speech not private actors right not private people so when we're talking about the employment context unless you're the government as the employer if you're a private employer the first amendment actually doesn't quite apply to you doesn't really apply to you there can be some exceptions but generally doesn't so in the employment context you get you run into another set of rules and it normally it typically has to do with a law called the National Labor Relations Act and you might think oh that has to do with unionized workforce and that's actually not true most companies are subject to the NLRA and what the NLRA does one of the things it does is it protects workers ability to engage in what they call concerted protected activity which means they get together to talk about their work the conditions of the work their compensation and such and and you can't as an employer clamp down on that so in the social media context you've got a can of worms why because you've got a lot of your co-workers on social media they're connected you say something about I had a bad day of work because my boss mistreated me blah blah blah you're complaining about your work conditions and so that's the activity is concerted because it's social right it's connected so yeah so if you cross the line and crack down on that kind of activity that's a no no can't do that but but if that's not at issue then you can discipline or terminate your employees okay so Roseanne was not protected by any law she just said something that came off top of her head and it was bad and her employer said we're done right she wasn't complaining about her workplace or compensation or anything she was just making a comment off her own views okay yeah now now Elijah I know that you were clerking for Judge Samuel King yes happily yeah and great guy great judge great person I knew him very well what words of advice did Judge King give you that you you could pass on well I think the thing I learned the most from Judge King is to not take yourself too seriously he was you know Judge King he's he's a man of great wit and wisdom just a very funny guy in addition to being a great judge and just in the two years of working under him I learned to yeah to always to look at things with you know with levity I think that's important especially the stressful jobs that we have as lawyers and in life in general you know to take everything with a grain of salt and to not take yourself too seriously and you know that sounds like good advice for the social media or the anti-social media whichever we're dealing with I think if they took that advice we'd have less trolls yes yes yes yes well Elijah I want to thank you for being my guest today Elijah yep partner at Cade Shetty you've enlightened us and told us a little bit about the media that we didn't know before and I appreciate you being my guest today thank you it's been a pleasure