Transcript The Medium is too Large

The medium
is too large.
Employee Relations in the
age of social media.
Hogan, Sarzynski, Lynch, DeWind &
Gregory LLP
The first amendment and
social media


It all started with the
18th century analog of
social media—the
independent
newspaper.
The colonial
Governor’s attempted
to shut down a
newspaper by
throwing its only skilled
printer in jail. It didn’t
work.
The Court’s View of Social
Media and protected speech

“[I]t is probably safe to assume that Samuel Adams, Benjamin
Franklin, Alexander Hamilton and Thomas Jefferson would have
loved to tweet their opinions as much as they loved to write for
the newspapers of their day (sometimes under anonymous
pseudonyms similar to today's twitter user names). Those men,
and countless soldiers in service to this nation, have risked their
lives for our right to tweet or to post an article on Facebook; but
that is not the same as arguing that those public tweets are
protected. The Constitution gives you the right to post, but as
numerous people have learned, there are still consequences
for your public posts. What you give to the public belongs to
the public. What you keep to yourself belongs only to you.”
People v Harris, 36 Misc. 3d 868, 878 (N.Y. City Crim. Ct. 2012)
The Court’s View of Social
Media


Social media web sites, such as Facebook and Twitter,
exist to allow individuals to interact with "real
world" friends, relatives and those individuals sharing
common interests that may be as close as your own
town, or as far away as a distant continent…Whether
these broadcasts take the form of "tweets," or postings
to a user's "wall," the intent of the users is to disseminate
this information.
Judge Matthew Sciarrino pointed out in his decision
concerning an "Occupy Wall Street" protestor charged
in the Criminal Court of New York County that, [i]f you
post a tweet, just like you scream it out the window,
there is no reasonable expectation of privacy.
Fawcett v. Altieri, 38 Misc. 3d 1022, 1025 (N.Y. Sup. Ct.
2013)
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Employees Say the Darndest
Things
The free speech rights of school
employees are not violated when a
school district imposes discipline on
such employees for directing ethnic
slurs or disparaging comments
towards students in class …
Matter of Watt (East Greenbush Cent.
Sch. Dist.85
rd
A.D. 3d 1357, 1359 (N.Y. App. Div. 3 Dept., 2011)
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Employees Use Social Media

On June 22, 2010, a New York City public school
student fatally drowned during a field trip to the
beach. (Id.). On June 23, 2010, after the school
day was over and petitioner was at home, she
posted the following on her Facebook
page: "After today, I am thinking the beach
sounds like a wonderful idea for my 5th graders! I
HATE THEIR GUTS! They are the devils (sic) spawn!"
One of her Facebook friends then posted, "oh you
would let little Kwame float away!" to which
petitioner responded, "Yes, I wld (sic) not throw a
life jacket in for a million!!" (Id.).
Matter of Rubino v. City of New York, 34 Misc. 3d
1220(A), 1220(A) (N.Y. Sup. Ct. 2012)
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Emerging trends in social
media investigation
 Insurance
defense lawyers have blazed a
trail seeking disclosure of social media
content to oppose claims of disability and
severe injury.
 For example, in Jennings v. TD Bank 2013
N.Y. Misc. LEXIS 5085; 2013 NY Slip Op
32783(U), the Court granted full disclosure
of the Plaintiff’s Facebook account after
an internet search revealed photographs
of the “disabled” Plaintiff on a cruise ship.
Monitoring Social Media May Get
Harder
 A8890/S1701(
in committee): 2. (a) An
employer, employer's agent or
representative, or its designee shall not
require any employee or applicant to
disclose any log-in name, password or
other means for accessing a personal
account or service through an electronic
communications device.
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No Exceptions
 The
pending bill has no carve outs for
employers in investigation of employee
misconduct.
 Violations are punishable by fine of $300
for the first one and $500 for each
violation thereafter.
 But it isn’t law-yet.
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The anonymity arms race
 Digital
tools to prevent discovery of the
user’s identity and usage.

In private (ie) or incognito (chrome)
browsing, Private Window (Firefox), private
Browsing (Safari). When enabled, these
tools prevent recording of the session in the
browsing history and erase all information
on sign off.
The anonymity arms race
 Proxy

and VPN’s
TOR (the onion router)
https://www.torproject.org/ “Using Tor
protects you against a common form of
Internet surveillance known as "traffic
analysis." Traffic analysis can be used to
infer who is talking to whom over a public
network… It can even threaten your job
and physical safety by revealing who and
where you are.”
The anonymity arms race

Hidemyass.com:http://www.hidemyass.com/vpn/
“Connect to our VPN service to anonymously
encrypt your internet activity from prying eyes. All
applications on your computer that utilize your
internet connection will become anonymous with
just a click of a button; no technical experience is
required due to our easy to use VPN software.
Enjoy internet freedom and anonymity knowing
that your sensitive web traffic is securely hidden
behind 76'500+ IP addresses located in 158
locations in 75 countries.”
What About Sexting

UNITED STATES OF AMERICA, Appellee, v.
JOHN PUGLISI, Defendant-Appellant

Defendant John Puglisi, 31, of Endicott, New York and
a former Newark Valley High School teacher, was
sentenced in Binghamton federal court to 15 years in
federal prison and a life term of supervised release to
follow the imprisonment term. Puglisi had been
convicted and found guilty after a five-day jury trial
held in federal court. He was convicted of production
and attempted production of child pornography;
persuading, inducing, and enticing a minor to
engage in sexual conduct; and possession of child
pornography. FBI.com
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What About Sexting

To convict Puglisi of attempted production
and production of child pornography under
18 U.S.C. § 2251(a), the government was
required to prove that "(1) the victim was less
than 18 years old; (2) the defendant used,
employed, persuaded, induced, enticed, or
coerced the minor to take part in sexually
explicit conduct for the purpose of producing
a visual depiction of that conduct; and (3)
the visual depiction was produced using
materials that had been transported in
interstate or foreign commerce.
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What About sexting?
 In
this case, Puglisi's conviction for
violating 18 U.S.C. § 2251 carries a
statutory minimum sentence of 15 years'
(180 months') imprisonment. See 18 U.S.C.
§ 2251(e)
 He lost the appeal, he lost his family, he
lost job, he lost his teaching certificate
and he lost his freedom.
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A policy might help.
 NYC
DOE has a good one
http://schools.nyc.gov/NR/rdonlyres/BCF4
7CED-604B-4FDD-B752DC2D81504478/0/SMG_FINAL_20130415.p
df
A policy might help

Some of the good parts of NYC DOE policy:
 Defines social media;
 draws a distinction between professional and
private use;
 Prohibits social media contact with students;
 Warns employees “Personal social media use,
including off-hours use, has the potential to
result in disruption at school and/or the
workplace, and can be in violation of DOE
policies, Chancellor’s Regulations, and law.”
What About FOIL?

[W]hen a public officer or employee uses a
personal computer or laptop in the course of
his or her official duties, logs involving the use
of that computer, in our opinion, would be
relevant to the performance of that person's
duties. On that basis, we do not believe that
disclosure would result in an unwarranted
invasion of personal privacy with respect to
an officer or employee serving as a
government officer or employee. COOG
Opinion Number 18971.
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What About My Private Email?
 From
my perspective, email kept,
transmitted or received by a school board
member or school district employee in
relation to the performance of his or her
duties is subject to the Freedom of
Information Law, even if the official uses
his/her private email address and his/her
own computer.
COOG Opinion Number 17045.
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What about SARA ED-1
 The
State Archives and Records
Administration devoted a portion of its
website to social media.
http://www.archives.nysed.gov/a/records
/mr_social_media.shtml
What about SARA ED-1


“By law, you must ensure that records are
accessible and are retained for the duration of
their retention periods. This means you will usually
need to manage most records—except for
records with very short retention periods—in your
own technical environment.
Consider how frequently you will need to capture
information. This will depend on how frequently the
content changes, the quantity of the content, the
stability of the networking site, and the
functionality of the tools available for extracting
the information from the site.”
Social media and defamation
law.
 The
Communications Decency Act of
1996 (47 USC 230 et seq) provides
immunity to interactive computer services
from civil liability for defamatory content.
See, Finkel v. Facebook, Inc., 2009 NY Slip
Op 32248(U)
Social media and defamation
law.
 To
be actionable, a statement of fact is
required, and "rhetorical hyperbole" or
"vigorous epithet" will not suffice.
 Only facts "are capable of being proven
false."
Finkel v. Dauber, 29 Misc. 3d 325, 328-329
(N.Y. Sup. Ct. 2010)
Social media and defamation
law.

Context is key, as assertions that a person is guilty
of "blackmail," "fraud," "bribery" and "corruption" in
certain contexts could be understood as
hyperbole or epithet. "The infinite variety of
meanings conveyed by words--depending on the
words themselves and their purpose, the
circumstances surrounding their use, and the
manner, tone and style with which they are used-rules out . . . a formulistic approach.”
Finkel v. Dauber, 29 Misc. 3d 325, 328-329 (N.Y. Sup.
Ct. 2010)
Social media and defamation
law.

Determining whether a given statement expresses
fact or opinion is a question of law for the court
and one which must be answered "on the basis of
what the average person hearing or reading the
communication would take it to mean" (Steinhilber
v Alphonse, 68 NY2d at 290).
Finkel v. Dauber, 29 Misc. 3d 325, 328-329 (N.Y. Sup.
Ct. 2010)
The End!
 John
Lynch
Hogan, Sarzynski, Lynch, DeWind &
Gregory, LLP
P.O. Box 660
Binghamton, NY 13902
tel: 607-797-4839
email: [email protected]
Twitter: @hsldg1
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