Social Media Policy & Retention Issues    Suzanne Shaw, AAG IPMA January 12, 2010

Part 1 - Who let the lawyers loose?

    Why agency use of social media got my attention It’s interesting It’s everywhere  Agency use  Front page Lack of information  Legal issues  Potential risk

It’s different for government    All of the private sector issues, on steroids Business need, appropriate content, employee behavior, adhesive TOS, privacy, accessibility  And many more Public disclosure, records retention, advertising, First Amendment

TOS - what did we just agree to?

        Terms of service = contract Indemnification Limitations on liability Endorsement or advertising Governing law & venue Copyright & intellectual property rights Privacy & data gathering practices Others - mileage varies depending on provider

And what will we do about…?

       Records retention, public disclosure, discovery Appropriate employee use, state ethics 1st Amendment & expression Identity hijacking Publicity rights (“model releases”) Accessibility, nondiscrimination Privacy implications, stewardship of data

Part 2 - Maybe we need a policy!

 Should a policy cover  Agency use of social media   Employee use of social media Or both

Policies - Part A        Agency access to social media sites Who can establish accounts  On what basis Is someone going to read that !@#$ TOS  Not government friendly = calculated risk  NASCIO, building on federal efforts Who can post content What are the ground rules Who will monitor responses Security concerns

Policies - Part B  Employee access to social media sites     Business purposes  Communications  Operational - investigations, background checks Professional purposes  Networking Personal use  Ethics law; de minimis use Security concerns 8

Food for thought    Social media is NEW media Technology usually outstrips law (& policy) Social media requires care & feeding 9

For your consideration ….

       Develop & work from checklists Let business needs drive Select providers that are good fit Control access appropriately Pay attention to TOS Weigh risks & benefits Consider adopting policies first 10

Part 3 - Records, records, records   Significant because of legal risk   Public disclosure laws - fines for failure to produce eDiscovery obligations - sanctions for failure to meet Compliance relies on good records retention 11

What do we keep?

    Broadly, a public record is any writing that relates to the conduct of government business Agency posts generally = public records Posts that are copies of other records retained (e.g. links to publications) are “secondary”  No need to retain Otherwise, posts are “primary”  Maintain as required 12

How long do we keep it?

   Retention period depends on content Know the applicable requirements Examples     Link to an agency news release Agency blog entries Public comments Agency director tweets 13

How do we keep it?

  Are posts within the agency’s control?

If not, how is content captured?

    Email confirmation Cut & paste to Word Site configurations/settings 3rd party software 14

What’s the recipe for success?

  Social media tools bring opportunity and challenge Agencies that understand and manage risks are more likely to avoid unintended consequences     Carefully select appropriate social media for recognized business needs Develop & apply policies to manage agency and employee use of this developing technology Properly identify & retain public records on social media Educate managers and employees 15

Thank you!

16