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

1. Social Media, Employee
Privacy Interests and
Employer Business Interests
Victoria L. Herring
December 2011
1

2. Social Media? Anti-Social Media?
One-way delivery of information
memos, letters, brochures, ads
versus
two-way ‘street’, interaction between
parties; collaboration
blogs, networks, social sites
2

3. Examples of Social Media
Facebook and LinkedIn
Twitter
Digg, Delicious and StumbleUpon
YouTube and SlideShare
Flickr, Picasa, Instagram
3

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. Types of Social Media Sites
Sharing 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. Privacy Rights Clearinghouse
www.privacyrights.org
Categories of Social Media
Personal
Status Update
Location
Content-sharing
Shared Interest
6

7. Social Media as Evidence
Relationships
Location
Activities
Lack of emotional distress, damage
Reputation
Billing practices
Copyright or Trademark Use
Employment actions
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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. Internet Archive: www.archive.org
“Wayback Machine”
9

10. May 8, 1998, Apple.com
10

11. Employee Privacy Interests
Legal Protections for Employees
Federal Constitution
Federal Statutes
State Statutes
Common Law Recognition
11

12. Other Rights?
lst Amendment Rights:
Free Speech
Petition the Government
Peaceable Assembly
Free Press
12

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. Federal Statutes
Electronic Communications Privacy Act of 1986,
amending the Wiretapping Act
FACTA: Fair & Accurate Credit Transaction Act of
2003, amending the Fair Credit Reporting Act
[FCRA]
Health Insurance Portability & Accountability Act of
1996 [“HIPAA”], 42 U.S.C. § 1302(d) & regulations
no private right of action under HIPAA, go thru
HHS & Department of Justice
14

15. National Labor Relations Act
NLRB interprets to protect employees:
surveillance cameras
meetings regarding discipline
free speech if a matter of employment concern
15

16. Software to Monitor
“a computer monitoring tool that records what your employee,
roommate or child does on your computer”
16

17. Methods of Monitoring
Telephone
Computer [keystroke monitoring]
Mail, eMail,
Voicemail
Video surveillance
Social Media
17

18. Cautions re Monitoring
Depends on application of EPCA, Federal and
State* 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.
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19. Monitoring with Social Media
© Dilbert by Scott Adams, DMRegister 12/4/11
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20. Government Employees
O’Connor v. Ortega [1987]: 4th
Amendment applies == the question is
whether the employee
has a reasonable expectation of privacy in
area searched
whether employer’s search of area was
reasonable under circumstances: “context”
20

21. O’Connor v. Ortega
operational realities of the workplace may make
expectation of privacy unreasonable
tested on case-by-case basis: depends on context and
balance of legitimate expectation of privacy with
employer need for supervision, control and efficient
operation of workplace
21

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. City of Ontario, California v. Quon,
6/17/2010
Police official sent text messages. Department
had computer policy on personal use of email,
not of text messages although treated them
the same.
Messages reviewed, many personal and some
sexually explicit - Quon was disciplined for
violation of department rules.
23

24. Under O’Connor, Quon had reasonable
expectation of privacy. The question was
whether the search was reasonable.
Criteria for justifying search = a work
related purpose, not excessively
intrusive, among others
24

25. Private Employee Rights
Must be provided a copy of his or her personnel file, under
Section 91B, Iowa Code
ADA & ICRA Protections ref. medical information; see
ADA § 12112(d)(3)(B) & 29 CFR § 1630.14(b)(1)
Electronic Communications Privacy Act [ECPA];
digital privacy protections, outstripped by
technology
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26. Private Employee Rights
Some Courts have recognized email as protected
by 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 policies
and notice to employees of what they can expect,
or not, in terms of personal privacy
26

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. Unionized Employees
Brewers & 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. T or more Employees
wo
NLRB applies to employees engaged in
“concerted activity”, regardless of
whether unionized
NLRB v. American Medical Response of
Connecticut, Inc., NLRB No. 34-
CA-12576; postings on Facebook which
are protected, concerted activity cannot
be used to discipline or fire employees
29

30. NLRB v. American Medical Response
NLRA gives employees rights to complain
about pay, safety and other working
conditions.
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.
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31. NLRB v. American Medical Response
NLRB: employee posting on Facebook
engaged in protected concerted activity
AMR policy/firing interfered with
employees’ right to engage in concerted
activities
cannot ban discussion of wages, employment conditions
cannot have an overly broad policy
31

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]
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33. TSA Agent - anti-Muslim, racist FB comments
Doctor fired after posting information about a
trauma patient on FB page, even if did not
reveal name
State police officer fired because of FB photos
and comments about being drunk
Professor fired after posting about a failing
student; teacher fired for joking about
drowning her students
[search, Huffington Post, “fired over Facebook”; not all firings
were upheld]
33

34. Watch what you Say
100155.strip.zoom.gif 1,000×311 pixels 12/13/11 10:05 AM
© Dilbert by Scott Adams, www. Dilbert.com
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35. Wiretapping & Eavesdropping
“Get a good night’s sleep, and don’t
bug 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. Eavesdropping
Eavesdrip is an Anglo-Saxon word, and refers to the wide
overhanging eaves used to prevent rain from falling close to a
house's foundation. The eavesdrip provided "a sheltered place
where one could hide to listen clandestinely to conversation
within the house." W. MORRIS & M. MORRIS, MORRIS DICTIONARY OF WORD AND PHRASE ORIGINS,
198 (1977)
Dilbert by Scott Adams, from http://www.spybusters.com/History_Cartoons.html
36

37. Can We Tape?
State v. Philpott, 702 N.W.2d 500 (Iowa 2005), illegal
to tape while not present.
Iowa Code § 727.8: Electronic and Mechanical
eavesdropping - 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
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38. Iowa Code Ch. 808B: Interception of
Communications - 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. Section 808B.7: contents of intercepted
communication shall not be received in evidence “if
the disclosure of that information would be in
violation of this chapter”.
Section 808B.8: person whose communication is
intercepted, disclosed or used has a cause of action
against any person who does that, for injunction
and damages
39

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 in
family]
Exceptions for inadvertent disclosure, etc.
Example: Employee fired a week after mentioning that her
mother 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. 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. U.S. v. Warshak, 6th Circuit; 4th
Amendment & ECPA: A warrant is
required for searches within the 6
months. There is a reasonable
expectation of privacy for emails
stored on 3rd party servers.
42

43. United States v. Jones, U.S.S.Ct., decided
Jan 2012: GPS Satellite monitoring of
vehicle’s movements is a “search” and violates
the 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. Life of an Email
Email message
Written [computer] packetized
INTERNET
Packets Packet Re-packetized
Routed Reassembled
& Copied
Message Received at
Stored Reassembled Mailserver
Retrieved & Read
44

45. Post
Life of a Posting
Upload
Written to
web INTERNET
Packets
Re-assembled, re-packetized
Routed
Public
Posting
or
stored on
Reassembled Private
Server Access?
Retrieved & Read
and stored forever
45

46. Library of Congress is
creating an Twitter archive
of all public tweets since
2006 -
46

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. Handbooks and Manuals
retention policies
destruction policies and procedures
FACTA - FTC regulations on proper
disposition of records & handling of employee
misconduct investigations
48

49. Ownership of Social Media Writings
non-compete agreements
non-solicitation agreements
intellectual property agreements
confidentiality agreements
severance agreements
49

50. non-compete agreements and non-solicitation
agreements -
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
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51. Risk to Employers: Failing to treat social
media 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. Some online resources particularly
helpful:
Privacy Rights Clearinghouse,
www.privacyrights.org
Electronic Privacy Information Center
www.epic.org
52

53. Thank you.
Victoria L. Herring
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