Privacy and Social Media


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This is a pdf of a presentation I gave in December 2011 on employment rights and privacy and social media's impact.

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Privacy and Social Media

  1. 1. Social Media, Employee Privacy Interests andEmployer Business Interests Victoria L. Herring December 2011 1
  2. 2. Social Media? Anti-Social Media?One-way delivery of information memos, letters, brochures, ads versustwo-way ‘street’, interaction betweenparties; collaboration blogs, networks, social sites 2
  3. 3. Examples of Social Media Facebook and LinkedIn Twitter Digg, Delicious and StumbleUpon YouTube and SlideShare Flickr, Picasa, Instagram 3
  4. 4. “...And thus, is great teaching in action. Great teachers are now syndicators (sp?) of content. Great teachers share. Great teachers teach us all.” 4
  5. 5. Types of Social Media SitesSharing of all sorts of things News & Articles [blogs, news aggregators] Information [chat rooms, IMs, texts] Images [Flickr, Picasa, Google Images, iReporter] Knowledge [Wikipedia] 5
  6. 6. Privacy Rights Clearinghouse Categories of Social Media Personal Status Update Location Content-sharing Shared Interest 6
  7. 7. Social Media as EvidenceRelationshipsLocationActivitiesLack of emotional distress, damageReputationBilling practicesCopyright or Trademark UseEmployment actions 7
  8. 8. Dangers from use of Social Media Misunderstandings sarcasm, parody, joking Divulging information broader than intended failure to properly set privacy settings failure to understand what is or is not private Permanent record assuming fleeting nature of what is said misunderstanding electronic media 8
  9. 9. Internet Archive: “Wayback Machine” 9
  10. 10. May 8, 1998, 10
  11. 11. Employee Privacy Interests Legal Protections for Employees Federal Constitution Federal Statutes State Statutes Common Law Recognition 11
  12. 12. Other Rights?lst Amendment Rights: Free Speech Petition the Government Peaceable Assembly Free Press 12
  13. 13. Distinction between Government and Private Employment Constitutional Provisions limit intrusion upon employee’s privacy by government Statutory provisions may affect private employer’s ‘right’ to intrude on its employees 13
  14. 14. Federal StatutesElectronic Communications Privacy Act of 1986,amending the Wiretapping ActFACTA: Fair & Accurate Credit Transaction Act of2003, amending the Fair Credit Reporting Act[FCRA]Health Insurance Portability & Accountability Act of1996 [“HIPAA”], 42 U.S.C. § 1302(d) & regulations no private right of action under HIPAA, go thru HHS & Department of Justice 14
  15. 15. National Labor Relations ActNLRB interprets to protect employees: surveillance cameras meetings regarding discipline free speech if a matter of employment concern 15
  16. 16. Software to Monitor“a computer monitoring tool that records what your employee, roommate or child does on your computer” 16
  17. 17. Methods of Monitoring TelephoneComputer [keystroke monitoring] Mail, eMail, Voicemail Video surveillance Social Media 17
  18. 18. Cautions re MonitoringDepends on application of EPCA, Federal andState* Laws, Employer policies and assurances. Telephone Computer [keystroke monitoring] Mail, eMail [not private if employer’s terminal] Voicemail, IMs Video surveillance Social Media *Note: Iowa differs from California, etc. 18
  19. 19. Monitoring with Social Media © Dilbert by Scott Adams, DMRegister 12/4/11 19
  20. 20. Government EmployeesO’Connor v. Ortega [1987]: 4thAmendment applies == the question iswhether the employee has a reasonable expectation of privacy in area searched whether employer’s search of area was reasonable under circumstances: “context” 20
  21. 21. O’Connor v. Ortegaoperational realities of the workplace may makeexpectation of privacy unreasonabletested on case-by-case basis: depends on context andbalance of legitimate expectation of privacy withemployer need for supervision, control and efficientoperation of workplace 21
  22. 22. O’Connor public employee’s reasonable expectation is qualified, subject to the ‘operational realities’ of the workplace policy in existence? keys to the office? work-based need for investigation? consent given? other factors, Quon 22
  23. 23. City of Ontario, California v. Quon, 6/17/2010Police official sent text messages. Departmenthad computer policy on personal use of email,not of text messages although treated themthe same.Messages reviewed, many personal and somesexually explicit - Quon was disciplined forviolation of department rules. 23
  24. 24. Under O’Connor, Quon had reasonableexpectation of privacy. The question waswhether the search was reasonable. Criteria for justifying search = a work related purpose, not excessively intrusive, among others 24
  25. 25. Private Employee RightsMust be provided a copy of his or her personnel file, underSection 91B, Iowa CodeADA & ICRA Protections ref. medical information; seeADA § 12112(d)(3)(B) & 29 CFR § 1630.14(b)(1)Electronic Communications Privacy Act [ECPA];digital privacy protections, outstripped bytechnology 25
  26. 26. Private Employee RightsSome Courts have recognized email as protectedby the ECPA, and others have not ECPA: email over 6 months old ‘abandoned’ versus continual existence in the ‘cloud’May depend upon employer adoption of policiesand notice to employees of what they can expect,or not, in terms of personal privacy 26
  27. 27. Private Employee Rights General view: employer ownership of place of employment and Iowa view of ‘at will’ employment combine to limit expectation of personal privacy in the private workplace especially if policy or other notice provided 27
  28. 28. Unionized EmployeesBrewers & Maltsters, Local No. 6, D.C.Cir. 2005 [NLRB]: secretive installation of hidden surveillance cameras in workplace violated NLRA because their use was a subject of bargaining 28
  29. 29. T or more Employees woNLRB applies to employees engaged in“concerted activity”, regardless ofwhether unionizedNLRB v. American Medical Response ofConnecticut, Inc., NLRB No. 34-CA-12576; postings on Facebook whichare protected, concerted activity cannotbe used to discipline or fire employees 29
  30. 30. NLRB v. American Medical ResponseNLRA gives employees rights to complainabout pay, safety and other workingconditions. AMR: employee who called her supervisor a “scumbag” [and worse] on Facebook from home computer could not be fired - postings were made in online discussion among employees about supervisory action, provoked by unlawful denial of union representation. 30
  31. 31. NLRB v. American Medical ResponseNLRB: employee posting on Facebookengaged in protected concerted activityAMR policy/firing interfered withemployees’ right to engage in concertedactivities cannot ban discussion of wages, employment conditions cannot have an overly broad policy 31
  32. 32. Huffington Post: “Fired over Facebook, 13 Posts that Got People CANNED” surfing FB while home ‘sick’ FB posted photos caused firing of professional football cheerleader 13 crew members on Virgin Atlantic participated in FB discussion; references to passengers & bringing company into disrepute fired for a derogatory, mocking FB group that mocked customers high school teacher for FB photos with wine, beer & expletive posting of video derogatory of employer; exposing patient confidential information [HIPPA violation] 32
  33. 33. TSA Agent - anti-Muslim, racist FB commentsDoctor fired after posting information about atrauma patient on FB page, even if did notreveal nameState police officer fired because of FB photosand comments about being drunkProfessor fired after posting about a failingstudent; teacher fired for joking aboutdrowning her students[search, Huffington Post, “fired over Facebook”; not all firings were upheld] 33
  34. 34. Watch what you Say100155.strip.zoom.gif 1,000×311 pixels 12/13/11 10:05 AM © Dilbert by Scott Adams, www. 34
  35. 35. Wiretapping & Eavesdropping“Get a good night’s sleep, and don’tbug anybody without asking me.” Richard M. Nixon to re-election campaign manager Clark MacGregor, recorded on tape [Christian Science Monitor, 8/14/80] 35
  36. 36. EavesdroppingEavesdrip is an Anglo-Saxon word, and refers to the wideoverhanging eaves used to prevent rain from falling close to ahouses foundation. The eavesdrip provided "a sheltered placewhere one could hide to listen clandestinely to conversationwithin the house." W. MORRIS & M. MORRIS, MORRIS DICTIONARY OF WORD AND PHRASE ORIGINS,198 (1977)Dilbert by Scott Adams, from 36
  37. 37. Can We Tape?State v. Philpott, 702 N.W.2d 500 (Iowa 2005), illegalto tape while not present.Iowa Code § 727.8: Electronic and Mechanicaleavesdropping - a misdemeanor Any person, other than a participant or listener to communication, without right or authority who taps into or connects a device to any telephone or other communication wire or who by any electronic or mechanical means listens to, records, intercepts a communication 37
  38. 38. Iowa Code Ch. 808B: Interception ofCommunications - a felony Unless as specifically authorized under Chapter 808B willfully intercepts or endeavors to intercept a wire, oral or electronic communication; uses or endeavors to use an electronic, mechanical or other device to intercept any oral communication willfully discloses contents or uses them knowing it was obtained in violation of Ch. 808B.2, although some exceptions for communications carrier employees and parties to communication, or prior consent given 38
  39. 39. Section 808B.7: contents of interceptedcommunication shall not be received in evidence “ifthe disclosure of that information would be inviolation of this chapter”.Section 808B.8: person whose communication isintercepted, disclosed or used has a cause of actionagainst any person who does that, for injunctionand damages 39
  40. 40. Can we Use the Information?Genetic Nondiscrimination Act of 2008[GINA]; illegal to use or discriminate because of‘genetic information’“Genetic Information” broadly defined [disease/disorder infamily]Exceptions for inadvertent disclosure, etc.Example: Employee fired a week after mentioning that hermother had died of Huntington’s disease and she had 50%chance of developing it. in context of social media: mention of such on blog, FB, etc. in casual conversation which is then known to employer - Q whether ‘inadvertent’ or not? 40
  41. 41. 1986 Electronic Communications Privacy Act[ECPA], 18 U.S.C. § 2510 et. seq. prohibits interception of wire, oral or electronic communications ECPA added prohibition against interception or accessing electronic communications Warrant requires to obtain emails stored up to 180 days, not afterward 41
  42. 42. U.S. v. Warshak, 6th Circuit; 4thAmendment & ECPA: A warrant isrequired for searches within the 6months. There is a reasonableexpectation of privacy for emailsstored on 3rd party servers. 42
  43. 43. United States v. Jones, U.S.S.Ct., decidedJan 2012: GPS Satellite monitoring ofvehicle’s movements is a “search” and violatesthe 4th Amendment to the U.S. Constitution. -- Earlier cases [Karo, Knotts] in U.S.S.Ct. had allowed use of a monitoring device while moving in public or if limited in extent. 43
  44. 44. Life of an Email Email messageWritten [computer] packetized INTERNET Packets Packet Re-packetized Routed Reassembled & Copied Message Received at Stored Reassembled Mailserver Retrieved & Read 44
  45. 45. Post Life of a Posting UploadWritten to web INTERNETPackets Re-assembled, re-packetizedRouted Public Posting or stored on Reassembled Private Server Access? Retrieved & Read and stored forever 45
  46. 46. Library of Congress iscreating an Twitter archiveof all public tweets since 2006 - 46
  47. 47. Employer’s Protections Theory of At Will Employment Policies governing appropriate use of employer’s facilities, including communications and computer equipment Handbook separate policy signed receipt 47
  48. 48. Handbooks and Manuals retention policies destruction policies and procedures FACTA - FTC regulations on proper disposition of records & handling of employee misconduct investigations 48
  49. 49. Ownership of Social Media Writings non-compete agreements non-solicitation agreements intellectual property agreements confidentiality agreements severance agreements 49
  50. 50. non-compete agreements and non-solicitationagreements - Amway Global v. Woodward, E.D. Mich. 9/30/10, blog post can be evidence of solicitation TEKSystems v. Hammernik, 2010, complaint alleges violation of Noncompete and nonsolicit agreements based on Defendant’s LinkedIn profile.intellectual property/trade secrets Sasqua Group, Inc. v. Courtney, E.D. N.Y. 2010, employer failure to treat information truly secret meant customer list not such in today’s Internet society 50
  51. 51. Risk to Employers: Failing to treat socialmedia abuse differently from harassment Kiesau v. Bantz, 686 N.W.2d 164 [Iowa 2004]: emailed photoshopped image resulted in $150,000 judgment plus possibility of more for failure to properly supervise 51
  52. 52. Some online resources particularlyhelpful: Privacy Rights Clearinghouse, Electronic Privacy Information Center 52
  53. 53. Thank you. Victoria L. Herring 53