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TWITTER WHILE YOU WORK: THE LEGAL IMPACT OF SOCIAL
MEDIA, SOCIAL NETWORKING AND CLOUD COMPUTING IN THE
WORKPLACE
DEIRDRE J. KAMBER, ESQUIRE, CHP
[email protected]
610.797.9000 ext. 383
Copyright 2010 (c) Deirdre J. Kamber, All Rights
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
DEIRDRE
KAMBER,
ESQ., CHP





Areas of Practice:
 Employment
 Labor
 Information Privacy/Information Access
 School Law
 Unemployment Compensation, and
 Healthcare
Attorney, admitted in Pennsylvania, New York
and U.S. Supreme Court
Labor and management representation
From outsourcing HR work, to trainer, to
litigation
Work Website:
http://www.flblaw.com/attorney_directory/deirdr
e_kamber.asp
LinkedIn:
http://www.linkedin.com/in/deirdrejkamber
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Copyright 2010 (c) Deirdre J. Kamber, All Rights
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SOCIAL MEDIA,
NETWORKING,
DATA
AGGREGATION,
AND
CLOUD
COMPUTING

The workforce faces challenges in
technology unlike those we have ever
experienced.

Businesses are responsible for
creating policies, procedures and
programs to address employee use.

We are responsible for the impact of
social media from our client base.

We are using cloud computing for data
storage, and we are responsible for
how our electronic records are stored.

We need to be AHEAD of the curve.
Copyright 2010 (c) Deirdre J. Kamber, All Rights
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OUR
AGENDA FOR
TODAY

Social media, networking and
our employees

Social media, networking and
our clients

The impact of cloud computing

What does the caselaw say?

What do we need to do?
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The average person’s
most embarrassing
snafu:
How he feels about
friending his BOSS:
Incriminating photos
Discovered by a
FAMILY member
“HELL
NO!”
Number of people
creating unique content
on the web:
Number of Facebook
Friends Most People
Have:
85%
Between 100
and 300
FAVORITE
SITE:
FACEBOOK
Average number of
“tweets” per second:
600
Number of people
who consider
themselves addicted
to social media:
64%
Percentage of
people who have
snooped using
Facebook:
Number of people
He’d or she’d actually
call on the telephone:
10 -20
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Exerpted from “Women’s Health”, 9/2010

Where have we been?

Where are we now?

Social media is not a fad; it is a
multimillion dollar issue for
organizations. Look at Dirty
Dominos, or United Airlines;
what did it cost?

It is more important, statistically,
to have a virtual office than a
real one.
WHERE ARE
WE?
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News
Blogs
Articles
News
Photo
Photo
Albums
Sharing
Podcasts
Reports
Watch
Video
News
Sharing
Lunch
Social
Networks
Breaks
Message
Bulletin
Boards
Boards
Filing/
Tagging
Labeling
Coffee
Chat
Breaks
Rooms
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Ibibo * Adult FriendFinder * Advogato * Amie Street * ANobii * ASmallWorld * Athlinks * Avat
ast.fm * United * Badoo * Bebo * Bigadda * Big Tent * Biip * Black Planet * Blogster * Broadc
, Inc. * Youmeo * Zoo.gr * Buzznet * Café Mom * Cake Financial * Care2 * Classmates.com
llege Tonight * Couch Surfing * Daily Booth * Daily Strength * Decayenne * Deviant Art * Dis
ol2day * DontStayIn * Draugiem.lv * Elftown * Epernicus * Eons.com * Italki * Experience Pr
xploroo * Facebook * Faceparty * Faces.com * Fetlife * Filmaffinity * Fledgewing * Flixter * F
Fotolog * Friends Reunited * Friendster * Fruhstuckstreff * Fubar * Gaia Online * GamerDN
ather.com * Gays.com * Geni.com * Gogyoko *Hi5 * Goodreads * Gossipreport.com * Grono
Habbo * Hospitality Club *
Imeem * IRC-Galler
erNations * Itsmy * Iwiw *
Jammer Direct *
aixin001 * KIwibox *
LibraryThing * Lif
nkedIn * Live Journal *
Lunar Storm * M
eetup.com * Mobikade *
MocoSpace * Mouth
e Mocha * MOG * Mixi *
Jaiku * Multiply * M
MyAnimeList * My Church *
My Heritage * My L
y LOL * My Opera *
MySpace * My Year
Masza-klasa.pl * Netlog * Nettby * Nexopia * NGO Post * Ning * Odnoklassniki * OKCupid
One Climate * One World TV * Open Diary * Orkut * OUT Everywhere * Partner Up * Plaxo
Passportstamp * Pingsta * Playahead * Playboy U * Plurk * Present.lv * Qapacity * Quarte
Life * Qzone * Ravelry * Renren * ResearchGate * Reverberation * Ryze * Scispace * Shelfa
Skyrock * Social GO * Social Vibe * Sonico.com * Soundpedia * Stickam * StudiVZ * Supe
Nova.com * Tagged.com * Talent Trove * Talkbiznow * Taltopedia * TraveBuddy.com * Trave
Lertspoint.com * Tribe.net * Trombi.com
Tuenti.com
Tumblr * Twitter * V Kontakte9 * Vam
Copyright 2010 (c)*Deirdre
J. Kamber, All *
Rights
Reserved
Pirefreaks * Viadeo * Vox * Wakoopa * Wasabi
* Wayn * WebBIographies * WeOurFamily
WHAT IS SOCIAL
NETWORKING?
WHAT IS
SOCIAL
NETWORKING

Blogs -- “Entries of commentary on
websites”

Photo Sharing – “Publishing of user’s
digital photos online”

Video Sharing – “Video uploading
services allowing individuals to upload
video clips to an Internet Hosting
Website”

Tagging (or “Tag”) – “A nonhierarchical keyword”

Chat Rooms -- “Primarily used by
mass media to describe any form of
synchronous conferencing”

Message Boards -- “an online
discussion site”
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WHAT IS DATA AGGREGATION?
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WHAT IS DATA AGGREGATION?
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WHAT IS DATA AGGREGATION?
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WHAT IS DATA AGGREGATION?
http://radaris.com/p/Deirdre/Kamber/
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WHAT IS DATA
AGGREGATION?
Employment Law


Data aggregation allows for ease
of access to information.
Twine and Radaris, for example,
are search engines that
aggregate information.
Hospitalization in 1999
Experienced Trainer
Vacation in Vegas
Center Valley
Grandfather with cancer
Brandeis University
New York
June 9, 1972
SHRM
Mother
Pennsylvania
Rugby
HIPAA
Awardee: Top Twenty Under Forty
Religious beliefs: Reform
Social Media and Networking Law
Politics: financial conservative
Single Parent
Adjunct Professor
Master’s Degree
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Diversity
Fitzpatrick Lentz & Bubba
MENSA
15
Facebook
WHAT IS
CLOUD
COMPUTING?

Computing in the cloud

Online access through a third party
to your records, files, training
programs, results and other
outsourced functions.

Pros:
 It’s not on your server or system
 Saves space
 Reduces employee access

Cons:
 It’s not on your server or system
 You now have a third party to deal
with
 You now have contracts to
address and laws to consider (i.e.
retention, breach)
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EMPLOYEE ISSUES
AND
TECHNOLOGY
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EMPLOYEE
ISSUES WITH
TECHNOLOGY

Expectations of Privacy

TMI

Online Business Relationships

24-7 access to the Internet

Third Party Management
(Cloud Computing)
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EMPLOYEE
ISSUES WITH
TECHNOLOGY

45% of employers use social
networking sites such as
Facebook, MySpace, or Twitter to
research job candidates, according
to a CareerBuilder.com survey.

35% of employers reported having
refused to hire candidates based
on content found on those sites.

Even the Florida Board of Bar
Examiners suggested that
bar applicants' web postings may
reflect an “applicant's character and
fitness not readily observable
through the formal interview and
application process.”
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EMPLOYER
MONITORING
AND
EXPECTATIONS
OF PRIVACY

Employees should not expect privacy
in their emails or Internet use at the
office, or even at home where the
workplace is implicated.

Employees should not have an
expectation of privacy in Social
Networking sites, such as
Facebook.

For example, Social Sentry can
automatically monitor employees’
Facebook and Twitter accounts.
The cost is between $2 and $8 per
employee.
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TMI

Employers need to be aware with the
antidiscrimination laws, now including
GINA and other proposed laws (such as
GLBT), you want ONLY job-related
information.

Research via the Web will give you TMI.
YOU DON’T WANT THE
INFORMATION!!!!!
Even if you don’t know that it’s out there,

if you have a policy that says you look
up Facebook pages, if your employee’s
Facebook page includes her breast
cancer treatments, you are deemed to
have that information.
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ONLINE
BUSINESS
RELATIONSHIPS

Just as traditional friendships
between boss and employee can
be problematic, so too can online
relationships.

Now, add in: inequal workplace
relationships, “defriending,”
“posts,” and a lack of control over
Internet documents.

Clarify the relationship. You
must be direct about the nature of
your business relationship.
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ONLINE
BUSINESS
RELATIONSHIPS

Be social — to a degree. In most
offices, there's usually som esocial
mingling. The same goes for online
friendships.

Don’t play favorites. Don’t favor certain
employees in the workplace.

Keep topics off confidential
information. No matter how close you
are to pals in the office, you have to
resist the temptation to give them the
inside scoop.

Face the firing line. Sometimes an
employee is not performing up to par.
You must be this person’s employer first
and friend second.
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24-7 ACCESS TO THE
INTERNET
BE ABLE TO USE YOUR
ACCEPT-“ABLE” USE POLICIES
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
24-7 ACCESS
TO THE
INTERNET
AND
ACCEPTABLE
USE POLICIES
Some internet access is important --
You will lose productivity if you ban
everything.

Consider what might be relevant for
work -- Give your employees the
tools that they need to maximize
their talents.

Are You Working with IT? You
should be working with your IT
person to check allowing,
blocking and monitoring….what
do you want to know about?

Is your ban effective? Does
everyone have smart-phones? 
Allow
Block
Monitor
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LITIGATION
AND
PITFALLS
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
A lawsuit, which has been a huge
trend upward for:

WHAT
HAPPENS
WHEN THERE’S
A DISPUTE?
Defamation, false light, IIED,
Stored Communications Act
violations, etc.

An apology (like Dominos or
American Airlines)

Or an “To H^&* with You” answer
….
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
Is privacy dead?

NO. In Pietrylo v. Hlllstone Restaurant
Group, d/b/a Houston's, management
discovered that two waiters posted on
their MySpace page sexual remarks
about management and
customers, jokes about the company
and references to violence and illegal
drug use. After viewing the
site, management found the postings
offensive and fired the waiters.

Ironically, the company's efforts to
avoid liability actually resulted in a jury
verdict against it.
LITIGATION
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
The Court found:

The offensive postings were located in a
private chat room, access to which was
restricted only to users who first received
and accepted an electronic invitation;

Management had not received an invitation
from the waiters, but rather used another
employee's password (who had been
invited) to access the chat room; and

There was a dispute as to permissive
access. Although management argued it
was "authorized" to access the chat room
by the employee who provided her ID
and password, that employee testified she
felt she "probably would have gotten in
trouble" if she did not cooperate.
LITIGATION
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
Quon v. City of Ontario - the U.S.
Supreme Court was faced with the
question as to whether an employer can
review work-phone text messages where
the purpose is not to invade the
employee’s privacy. Yes or no?

Morse v. Mer - exotic dancers advertised
their personal talents on Facebook and
challenged their employer’s determination
that they were independent contractors
under the FLSA. Were they?

TekSystems v. Hammernick - an
employer sued its former employee for
breach of restrictive covenants due to
LinkedIn communications. Was it a
breach?
LITIGATION
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LITIGATION

Petrovitch Development -- E-mails between
a client and attorney are not
considered privileged and confidential, if the
client writes the messages from a work e-mail
account. (SO, if you intend to sue your
employer, don’t discuss the suit with an
attorney using company e-mai.)

Steingart v. Loving Care – N.J. Supreme
Court said e-mails on a personal webbased e-mail account accessed from an
employer’s computer were private. The
decision was contingent on the fact that use
of such an account was not clearly covered
by the company’s policy, and the e-mails in
question contained a standard warning that
the communications were personal,
confidential, attorney-client communications.
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LITIGATION

Sousa v. American Medical -- The NLRB
says the Company enforced an "overly broad
blogging and Internet posting policy" and
illegally denied Dawnmarie Souza, an
investigatory interview. The company said it
canned Souza "based on multiple, serious
complaints about her behavior.“ According to
the NLRB, Souza "posted a negative
remark about a supervisor" after being
threatened with disciplinary action when she
requested union help. The case was settled.

Boulder Valley School District – BVSD
searched several students’ cell phones after
sexting was discovered. The ACLU stepped
in, and the District agreed to revamp its
access policy to student phones.
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LITIGATION

The EEOC is now deciding the impact
of incidental information under the
GENETIC INFORMATION NONDISCRIMINATION ACT (GINA)
through social media.

There may be Fair Credit Reporting
Act issues with internet investigations.

Most webposts are protected if they
are anonymous as First Amendment
speech.
Subpoenas can be effectuated, but
are frequently fruitless.

Copyright 2010 (c) Deirdre J. Kamber, All Rights
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BEST
PRACTICES
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BEST
PRACTICES:
STRATEGIC
APPROACH

Virtual branding

Strategy

Proactivity

Policies

Communication

Practices

Training
Copyright 2010 (c) Deirdre J. Kamber, All Rights
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BEST
PRACTICES:
BEWARE!

If you trust your information to third party
vendors, you have less control over your
data.

TMI can be used against you.

Coercion does NOT give consent

Be aware of unionizing/organizing
language

Data breaches are a risk for any
computer system. Problems are
compounded with a third party.
Copyright 2010 (c) Deirdre J. Kamber, All Rights
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

BEST
PRACTICES:
YOUR
CHECKLIST




YOUR AUP IS PROBABLY
ALREADY OUT OF DATE
Employees’ expectation of privacy
changes with the amount of notice
and authorization as to monitoring
Expectations should be balanced
between employee and employer
Get yourself trained and make sure
that someone is helping you out.
Security threats don't just occur in
cyberspace. Protect the physical
environment of stored data.
Don’t sign on for more than you are
willing to ACTUALLY DO
Copyright 2010 (c) Deirdre J. Kamber, All Rights
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BEST
PRACTICES:
THIRD
PARTIES

Have a clear understanding of vendors'
procedures to safeguard data, seal leaks
and prevent mishaps.

You need a clear sense of access,
policy, procedure and chain of
command in cases of breach.

You need to know which laws apply to
you, and what happens in cases of
breach.

You also may want levels of access to
information.
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Questions?
Comments?
Deirdre J. Kamber, Esq., CHP
[email protected]
Fitzpatrick Lentz & Bubba, P.C.
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