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- 1. Attention All Units: Standby for a Social Media Emergency KATHRYN WINN 2016 SDA CONFERENCE
- 2. What is social media? Online communities where users share information Facebook Twitter YouTube Instagram
- 3. How does social media relate to the workplace? 2/3rds of online adults in U.S. use a social networking site* What are they doing on social media related to work? ◦ Access SM at work ◦ Discuss work issues or “vent” on SM ◦ Follow or communicate with co-workers on SM *October 8, 2015, Pew Research Center, Social Media Usage: 2005-2016 by Andrew Perrin
- 4. How does social media relate to emergency services? The more channels of communication, the better A good complement to traditional notification systems - not a replacement
- 5. The law in this area is a snake pit Mostly “old” laws being applied to a new and unique mode of communication Limited case law, limited guidance Law is complex and evolving U.S. Supreme Court hasn’t jumped into the snake pit yet
- 6. Part I – Employer / Employee Issues
- 7. Can an employer monitor an employee’s computer use and Internet activities on an employer-provided computer and Internet connection? Monitoring can be a “search” Fourth Amendment prohibits unreasonable searches and seizures (violates reasonable expectation of privacy) Generally ok if (1) reasonable grounds for suspecting that it will turn up evidence of misconduct; and (2) limited in scope
- 8. City of Ontario v. Quon City reviewed police officer’s personal text messages sent on a pager issued by the City City had policy warning that communications can be monitored and employees should not expect privacy Unreasonable search? NO - work-related purpose and limited in scope Moral of the story – Have a written policy stating that employees have no expectation of privacy in communications sent on employer- issued devices
- 9. Colorado Law Requires E-Mail Monitoring Policy Public entities that operate or maintain an email system must adopt a written policy regarding monitoring of e-mails § 24-72-204.5, C.R.S.
- 10. Can an employer prohibit employees from accessing social media sites while on-duty? Yes Can prohibit use of the Internet for any reason during working hours on both employer-issued and personal devices During breaks, can use personal device
- 11. Can an employer terminate or discipline an employee for content posted on a personal social media website? First Amendment Colorado “Smokers’ Rights Act” Personnel policies ….Now entering the snake pit!
- 12. Is the Social Media post protected by the First Amendment? Is the speech made as a citizen regarding a matter of public concern? Does the employer’s interest in an efficient workplace outweigh the employee’s First Amendment interests? Case law
- 13. Does the “Smokers’ Rights Act” apply? Prohibits employers from terminating employee for engaging in lawful activity off the premises of the employer during nonworking hours § 24-34-402.5, C.R.S.
- 14. Can employees express their support for a political candidate by “liking” or following their social media pages? = Protected Speech “The Internet equivalent of displaying a political sign in one’s front yard.” (Bland v. Roberts) Don’t your favorite candidate while on-duty using an employer-issued computer -Colorado Fair Campaign Practices Act
- 15. What if an employee posts harassing or discriminatory comments about a co-worker on his Facebook page? The “workplace” goes beyond the office walls If employer is aware of it and does nothing, could be liable Extend your anti-harassment policy to SM and respond promptly to claims of harassment or discrimination
- 16. Can employers ask their employees to share their social media account passwords, require an employee to be their Facebook friend, or suggest that they change their privacy settings? NO! Colorado Social Media and the Workplace Law. § 8-2-127, C.R.S. Ok to send a “friend” request to an employee, but cannot require the employee to accept it. Definition of “employer” is very broad, but excludes law enforcement agencies.
- 18. What should be included in a social media policy? State the purpose of the policy Prohibit personal use while on-duty, except on personal devices during breaks Prohibit personal use on the employer’s equipment/Internet connection at all times
- 19. What should be included in a social media policy? (continued) Prohibit disclosure of the employer’s confidential information Prohibit employees from making defamatory comments Extend anti-harassment policy to SM No expectation of privacy when using SM on the employer’s computer equipment Train employees so they understand the policy
- 20. Part II – Use of Social Media by Emergency Services Agencies
- 21. Why should an agency use social media for public education? Fast, easy and effective way to communicate with the public Disseminate general information to the public about alerts, news, and special events When possible, get a media release before posting photos or videos of employees, volunteers, or members of the public (including children)
- 22. Why should an agency use social media during an emergency? Again, a very effective way to quickly communicate with a large number of people The public will be using it (2/3rd of adults) Broadcast alerts and warnings Disseminate damage assessment information Dispel rumors People expect real-time information updates
- 24. What role has social media played in past emergencies? Hurricane Sandy: 20 million Sandy-related tweets
- 25. What role has social media played in past emergencies? (continued) Boston Marathon Bombings: Boston PD used SM to dispel rumors
- 26. What role has social media played in past emergencies? (continued)
- 27. What role has social media played in past emergencies? (continued) LAX Lithium Battery Explosion LAFD gathered on-scene information prior to arriving by contacting their Twitter followers who had “checked in” to the terminal on FourSquare* Relatively minor event *Check in feature is no longer available or FourSquare, but is available on other social media sites such as Facebook and Instagram.
- 28. What role has social media played in past emergencies? (continued) Waldo Canyon Fire JIC gathered info from Colorado Springs and El Paso County officials and used Twitter to disseminate information and dispel rumors #WaldoCanyonFire hashtag reached 54.4 million people and drew 119,000 tweets in 15 days Flickr used to post maps and photos of the fire People shared their experiences on YouTube
- 29. How can an agency effectively use social media during an emergency? Decide which types of social media you will use and set up accounts Build your social network before an emergency occurs Adopt a policy (and include in ICP) – how will SM be used, who is authorized to post, and content/timing/frequency of posts
- 30. What information should be included in social media posts? Cover “what, when, where, why, and who” Be clear, specific, accurate, and consistent When changes in instructions are required, explain the reasoning Dispel rumors
- 31. Could posting on social media during an emergency open up the agency to additional liability? Potential negligence claim if use of social media makes the situation even worse Generally immune under CGIA
- 32. Take-Aways Snake Pit Adopt a Policy…and Follow It ◦ Use of SM by employees ◦ Use of SM by the agency for public education and emergency management Stay Informed
- 33. Are you a Social Media Hero?!
- 34. QUESTIONS & DISCUSSION Kathryn Winn (kwinn@cccfirm.com)
Editor's Notes
- Intro – Bob Who we are – CCC. Summary: Use of social media by emergency service agencies and their personnel, for both non-emergency and emergency communications, raises a number of legal considerations ranging from constitutional consideration of free speech and rights to privacy, to more traditional liability and employment claims. The presentation will consider the legal consideration of social media in both the emergency and non-emergency setting by emergency service agencies, and provide suggestions for developing a workable social media policy. Two topic areas: Social media in the workplace (employer/employee issues) Use of social media as a tool in emergencies
- Kathryn Social media is any form of electronic communication through which users create online communities to share information, ideas, messages, and other content. Social media includes internet forums, social blogs, wikis, social networks (e.g. Facebook, NextDoor), and many others.
- Kathryn In the United States, more than 2/3 of online adults use a social networking site. Not surprisingly, many employees have made comments and posted media to these websites about their employer, their employment status, and workplace issues. Employers are becoming increasingly concerned about the information their employees share on social media sites.
- Kathryn The more channels an agency has for disseminating alerts, warnings, and information, the greater the chance an individual will receive a message. Social media can be a good complement to traditional notification systems, but it’s not a replacement.
- Kathryn The law in this area is complex and evolving. There are not many laws or cases that specifically address the use of social media. The courts are applying old law to this new form of communication. The first part of our presentation looks at several issues that can arise with respect to social media in the workplace, and the second part looks at the use of social media as a public education and emergency management tool.
- Bob
- Bob It depends. Monitoring an employee’s electronic activities may be a “search” under the Fourth Amendment, which prohibits unreasonable searches and seizures. An unreasonable search is one that violates a person’s reasonable expectation of privacy. Employers must balance an employee’s reasonable expectation of privacy with the employer’s legitimate business interest. O’Connor v. Ortega, 480 U.S. 709 (1987). Generally, searches are acceptable if (1) there are reasonable grounds for suspecting that the search will turn up evidence of misconduct; and (2) they are limited in their scope. A search is limited in scope when it is related to the objectives of the search, and it is not overly intrusive given the nature of the misconduct. Employers can proactively reduce their employees’ expectation of privacy by having a written policy stating that employees have no expectation of privacy when using employer-provided technology.
- Bob City of Ontario v. Quon, 130 S. Ct. 2619 (2010). The City police department issued pagers to its SWAT team members, allowing them to exchange text messages to coordinate responses to emergencies. The City had a “Computer Usage, Internet and E-mail Policy” that permitted only incidental personal use of City-owned computers and equipment, warned employee that communications could be monitored and stated expressly that employees should not expect privacy in the use of the City-owned equipment. Sgt. Quon acknowledged in writing that he received and understood the policy. He went on to send so many text messages that there were extra charges on the City’s bill from the wireless service provider. The City obtained transcripts of the message from the service provider for a 2 month period, which showed that Sgt. Quon was using his pager for extensive personal text messaging – he sent 456 personal text messages while on duty in 1 month. Some of the messages were to or from his wife, while others were sent to his mistress, and another officer. Many messages were sexually explicit. Sgt. Quon was disciplined, and he sued the City for violating his Fourth Amendment rights. The U.S. Supreme Court held, 9-0, that the City’s review of Sgt. Quon’s text messages was a reasonable search under the Fourth Amendment, because it had a clear, work-related purpose at its inception and it was limited in scope (the City only reviewed transcripts from 2 out of 9 months Sgt. Quon had the pager; the City did not consider text messages sent while off-duty; the City did not review text messages sent on Sgt. Quon’s personal device; Sgt. Quon was advised that his text messages could be reviewed by the City). The Court applied the O’Connor test to decide the case. It avoided deciding whether public employees have a reasonable expectation of privacy in text messages sent on employer-owned equipment. Take-away: Employers need strong policies to reduce an employee’s expectation of privacy. We’ll talk about how to draft policies later.
- Bob Colorado law requires public entities that operate or maintain an e-mail communications system to adopt a written policy regarding monitoring of e-mail communications and the circumstances under which monitoring will be conducted. Section 24-72-204.5, C.R.S.
- Bob Employers can prohibit use of the Internet for any reason during working hours, regardless of whether the employee is using the employer’s computer or a personal device. However, during breaks, employees can use their personal device to browse the Internet or use social media.
- Bob It depends on whether the speech is protected under the First Amendment; whether the Colorado “Smokers’ Rights Act” applies; and whether it is prohibited by any personnel policies.
- Bob Public employers may terminate or discipline an employee for inappropriate activities on social media only if the activity is not protected under the First Amendment. Speech is protected if it is made as a citizen regarding a matter of public concern (i.e., political, social, or other concern to the community; petty complaints about a colleague are not a “matter of public concern”). The public employer may restrict protected speech if the employer’s interest in an efficient workplace outweighs the employee’s First Amendment interests. The courts consider whether the speech is disruptive of the workplace; whether it affects other employees’ performance and loyalty; and whether it affects public confidence in the office. Connick v. Myers, 461 U.S. 138 (1983) (establishing the two-part test); Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing of the employee’s interest as a citizen in speaking on matters of public concern and the interest of the State in promoting the efficiency of the public services it performs through its employees); Garcetti v. Ceballos, 547 U.S. 410 (2006) (applying the two-part test and holding that speech by a public employee pursuant to official duties is not protected under the First Amendment). Richerson v. Beckon (9th Cir. 2009). 9th Circuit held a school district did not violate the First Amendment rights of a school district administrator by demoting her because of her postings on a personal blog that criticized her colleagues and the school district. The court found that her comments severely impaired her ability to effectively supervise and work with others, and the school district’s legitimate interest in the well-being of the workplace outweighed the administrator’s interest in blogging. Spanierman v. Hughes (D. Conn. 2008). A CT district court found a school superintendent did not violate the First Amendment rights of a high school teacher by refusing to renew the teacher’s contract when the teacher “friended” students on social media to communicate about homework, and also posted pictures of naked men and engaged in conversations with his peers. The teacher’s behavior was considered disruptive of school activity, and the school’s interest in preventing the activity outweighed the teacher’s right to free speech.
- Bob Prohibits employers from terminating (not disciplining) an employee for engaging in any lawful activity off the premises of the employer during nonworking hours unless the restriction (i) relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee; or (ii) is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. § 24-34-402.5, C.R.S. May limit the employer’s ability to terminate an employee who posts content on social media that raises questions about the employee’s ability to perform his job duties, even though the conduct is legal. Example: a firefighter participates in a protest for a controversial and sometimes violent cause and posts pictures of himself at the protest on his Facebook page.
- Bob Yes. “Liking” a Facebook page can be protected speech. In Bland v. Roberts, the Fourth Circuit decided that a Sheriff’s Office deputy who “liked” the Facebook campaign page of a candidate running against his boss, the current sheriff, was speaking as a private citizen about a matter of public concern, did not disrupt the work of others in the office, and his interest in showing support for the candidate outweighed the current sheriff’s interest in maintaining effective and efficient public services. The court viewed “liking” a Facebook page as speech that can be entitled to First Amendment protections for public employees. The court described it as “the Internet equivalent of displaying a political sign in one’s front yard.” Caveat: Don’t “like” your favorite candidate during working hours on the employer’s computer equipment. The Colorado Fair Campaign Practices Act prohibits use of government money or resources to influence elections. Public employees can express a personal opinion about an issue, as long as they do not use government money or resources to do so. Article 45 of Title 1, C.R.S.
- B Blakey v. Continental Airlines, Inc. (N.J. 2000). A female pilot sued her employer for sexual harassment and a hostile work environment after several pilot posted “harassing gender-based messages” to an electronic bulletin board called the Crew Members Forum located on the airline’s website. The Supreme Court of NJ held that “harassment by a supervisor that takes place outside of the workplace can be actionable…employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is…taking place in the workplace and in settings that are related to the workplace.” Guardian Civic League v. Philadelphia Police Dep’t. (E.D. Pa. 2009). Alleging the employer police department created a hostile work environment by allowing white police officers to operate a racist website and to post racially offensive comments while on and off duty; the case against the police department settled for $152,000 plus injunctive relief. Espinoza v. County of Orange (Cal. App. 2012). Co-workers posted harassing comments on a blog via workplace computers, the blog discussed workplace issues, and the employer sent emails to employees directing they discontinue posting the improper comments, but did not disable their access to the blog, was sufficient to impute liability to the employer under California’s Fair Employment and Housing Act. ob
- Kathryn The Colorado Social Media and the Workplace Law prohibits employers from (1) suggesting, requesting, or requiring an employee or job applicant to disclose their user name and password for a personal social media account; (2) compelling an employee or applicant to add anyone, including the employer, to the employee or applicant’s list of contacts (i.e., friends, followers) associated with the social media account and (3) suggesting, requesting, or requiring an employee or applicant to change privacy settings associated with a social media account. § 8-2-127, C.R.S. “Employer” is defined broadly. It means a person engaged in a business, industry, profession, trade, or other enterprise in the state or a unit of state or local government, including an agent, a representative, or a designee of the employer. The department of corrections, county corrections departments, and state or local law enforcement agencies are excluded from the definition of “employer.”
- Kathryn
- Kathryn
- Kathryn Note: defamatory is a higher standard than disparaging and, because defamation can lead to legal claims, we believe employers are within their rights to prohibit employees from making defamatory comments on social media Prohibit employees from retaliating against individuals on the basis of social media posts. Example: an employee posts on Facebook “Looking for an employment attorney? Any recommendations?”; Inform employees that they may be subject to a disciplinary action, up to and including termination, for violation of the social media policy Advise employees that they should not have an expectation of privacy when using social media on the employer’s computer equipment; Include a disclaimer that the social media policy is not intended to restrict communications protected by state or federal law; Train employees concerning the social media policy; DO NOT require employees to disclose passwords or be your “friend;” and DO NOT prohibit all speech related to employment.
- Kathryn When does the agency want to use social media? Emergencies (focus of this section) P.R. purposes – not the focus of this talk, although a lot of the info will apply to this aspect as well
- It’s a fast, easy, and effective way to communicate with the public. Sites like NextDoor (a private, neighborhood-based social network) and Facebook can be used to disseminate general information to the public about alerts, news, and special events. For example, a fire department might post public safety reminders or photos of a training exercise. When possible, get a media release before posting photos or videos of employees, volunteers, or members of the public (including children). Public events/public spaces, probably OK without a release. In someone’s home…get a release.
- Kathryn It’s a very effective way to quickly communicate with a large number of people. The public will use social media to keep informed about the emergency and any continuing dangers, locate loved ones, notify authorities, and express support. Emergency services agencies can use social media to broadcast alerts and warnings, and disseminate damage assessment information during the recovery phase by quickly informing the public about when they can return to their homes, how volunteers will be coordinated, and how to apply for disaster relief. Agencies can also use social media to dispel rumors and correct misinformation that is circulating. People are accustomed now to real-time information updates. People don’t want to wait for press releases and press conferences.
- Kathryn Highlight: Online news is 3rd most popular source for emergency info. 80% expect emergency responders to monitor social media 75% expect help to arrive within 3 hours of posting need to social site Mobile apps and social media are tied as 4th most popular source for emergency information during a disaster.
- Kathryn Social media played a big role before and after the hurricane. Before the hurricane, FEMA, the Red Cross, the NYC Office of Emergency Management, and the National Guard sent out regular tweets on Twitter regarding emergency evacuation route information, evacuation orders, hurricane updates, and suggestions for personal preparedness (stock up on food, water, etc.). During the response phase, social media was used to distribute information about emergency shelters, finding missing people, food and water distribution, where to receive medical attention, which areas to avoid, and where to apply for disaster assistance. FEMA set up a webpage dedicated to dispelling rumors. According to FEMA, during and immediately after Hurricane Sandy, users sent more than 20 million Sandy-related tweets, despite the loss of cell phone service during the storm.
- Kathryn Immediately after the bombings, the Boston Police Department started sending out information on social media. The BPD used Twitter to correct misinformation reported by the traditional media, such as reports that an arrest was made immediately after the bombing. According to the Pew Research Center, one quarter of Americans looked to Facebook, Twitter, and other social media sites for information about the bombings. When the Boston Police department tweeted “CAPTURED!!!” at the end of the manhunt, more than 140,000 people retweeted it. Bostonians used social media to offer strangers lodging, food, or a hot shower when roads and hotels were closed.
- Kathryn
- Kathryn Social media was used by the Los Angeles Fire Department as a tool to gather on-scene information immediately after an explosion at LAX. The LAFD could see via FourSquare that some of their Twitter followers were at the terminal where the explosion was reported. They asked these individuals (via Twitter) to contact its public affairs department by telephone. By asking these individuals what they had observed, the public affairs office could provide first responders information about the event before they were on scene. The explosion was caused by a lithium battery overheating, and it was a relatively minor event.
- Bob The Joint Information Center gathered information from Colorado Springs and El Paso County officials and used Twitter to disseminate information and dispel rumors. The #WaldoCanyonFire hashtag reached 54.4 million people and drew 119,000 tweets in 15 days. Flickr was used to post maps and photos of the fire and people shared their experiences on YouTube.
- Bob Tell your constituents that you will communicate via social media during an emergency, and they should “friend” or “follow” your agency so they can receive information.
- Bob
- Bob An agency could face a negligence claim if its use of social media makes the situation even worse and, as a result, someone is further injured or harmed. However, public agencies are generally immune under the Colorado Governmental Immunity Act. Even if the agency is found liable, liability is limited to $350,000 for injury to one person, and $990,000 for injury to multiple persons.
- Bob Adopt a Policy…and Follow It. Policies are needed for the use of social media by employees and the use of social media by the agency for public education and emergency management. Include the social media emergency policy in each Incident Communications Plan. Stay Informed. The law in this area is undeveloped, and there will undoubtedly be changes as social media becomes more entrenched in our society.
- Bob