Transcript The advantages and risks of social networks and a look

The advantages and risks
of social networks and a
look into the future
Presented by:
Rob Cutbirth - Tucker Ellis LLP
and
Demetra Johal & Marc Leibowitz
Laughlin, Falbo, Levy & Moresi LLP
WHAT IS A SOCIAL
NETWORK?
Social Networking refers to web sites that allow people to connect with
one another and to share common personal or business interests, thereby
creating a virtual community.
Social Networks are often established or joined by public agencies to
educate the community as to their presence and services provided.
examples of social
networking sites
TYPES OF RISKS
• Data Protection – Inadvertent Dislosures and
Network “Hacking” (Privacy)
• Multimedia/Website (Privacy, Copyright)
• Improper Use and Communications (Libel/Slander;
Failure to Monitor or Protect; Improper Contact)
• Content Protection
(Loss of Federal Funding)
• Directors and Officers (Failure to Act/Protect)
THE BIG 3
• Employers’ Rights to Monitor Information
and Communications
• Employers’ Rights to Control and Manage
the Workplace
• Employers’ and Employees’ Rights and
Capabilities in Litigation
RIGHT TO MONITOR
What’s the Issue?
WHY Monitor?
• FERPA/HIPAA – Confidentiality Obligations
• Duties to Protect – Safety of Individuals/Students
• Funding Issues/Obligations – CIPA Filters
• Vendors – Attempting to Avoid Liability
• Community Relations – Parent Complaints
• Inconsistent Messaging – Inaccurate/Inappropriate Messages
HOW DO WE Monitor?
•
•
•
•
Sniffers
General and Random Reviews
Word/Content Searches
Usage Statistics
The Reality –
Responding to Information/Questions/
Complaints
POLICIES
• Holmes v. Petrovich Dev. Co., LLC, 191 Cal.App.4th 1047 (2011)
If an employee is aware of a company policy allowing for a
monitoring of emails, or of a company policy stating that an
employee should have no privacy rights/expectations in email or on
information stored on computer equipment, the employer can
review the emails and any stored data on a local station or network
server, even if the communications are between the employee and
his/her legal counsel (evidencing very broad confidentiality/privacy
waivers).
POLICIES and training
• Appropriate Training and Available Acceptable Use
Guidelines
• Appropriate Master Policies
• District Technology (Networks/Websites/PDAs/Email)
• Employee Technology (Personal iPads/PDAs/Laptops)
• Guest/Volunteer/Student/User Technology
• Appropriate “Agreements” for Access and Use
• Access (When, Where, How)
• Use (Positive And Productive Work-related/Site-Related
Behaviors)
Specific Thoughts
• All agency/work related communications must be issued through the
agency’s network
• Policies should be adopted against independent use of “personal” email
accounts to transmit agency business (Safety/Legal)
• No “texting” of confidential/work-related information over personal
channels (Privacy)
• Personal PDAs/iPads should be password protected (Privacy)
• “Personal” Websites developed by employees for work-related purposes
must be pre-approved and reviewed (Control/Management; Risk
Management Regarding Content, Copyright, Approved External Links)
• Limitations on blogs or the ability of third parties to “comment” or “post”
to your website (Risk Management Libel/Slander/Improper Comment)
Risks of not monitoring
• Potential Loss of Funding
• Front Page Adverse Media
Headline: This year’s
hottest teachers who
allegedly got busy with
their students
• No Defense of “Reasonable” Preventative Measures
• No Ability to Counsel and Prevent Employees from Making
Serious Mistakes
WORKPLACE MANAGEMENT
• Screening Job Applicants (37% of employers use social media to screen
applicants; 43% of candidates are not offered positions as a result)
• Disciplining for Bad Behaviors and Time Wasters
• Preventing/Addressing Hostile Work Environment
Some of our Behaviors
Comments made to Australian Prime Minister
Standards?
San Diego USD. v. Comm. on Prof. Comp., 194 Cal.App.4th 1454 (2011):
“[T]he calling [of a teacher] is so intimate, its duties so delicate, the
things in which a teacher might prove unworthy or would fail are so
numerous that they are incapable of enumeration in any legislative
enactment.... His ability to inspire children and to govern them, his
power as a teacher, and the character for which he stands are matters of
major concern in a teacher's selection and retention.” … There are
certain professions which impose upon persons attracted to them,
responsibilities and limitations on freedom of action which do not
exist in regard to other callings. Public officials such as judges,
policemen and schoolteachers fall into such a category. ... And as our
Supreme Court said in Board of Education v. Swan … ‘A teacher ... in
the public school system is regarded by the public and pupils in the light
of an exemplar, whose words and actions are likely to be followed by
the [students] coming under [his] care and protection.’” [Underlining
Added]
Collective bargaining
speech
• Design Tech. Grp. LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (April 19, 2013)
– Protected Facebook Postings under Sections 7 &8 of the NLRA:
Holli Thomas:
Needs a new job. I’m physically and mentally sickened.
Vanessa Morris: It’s pretty obvious that my manager is as immature as a person can be
and she proved that this evening even more so. I’m am [sic] unbelievably
stressed out and I can’t believe NO ONE is doing anything about it! The
way she treats us in [sic] NOT okay but no one cares because everytime
we try to solve conflicts NOTHING GETS DONE!!
Holli Thomas:
800 miles away yet she’s still continues our lives miserable. Phenomenal!
Vanessa Morris: Hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s
Rights book to work. My mom works for a law firm that specializes in
labor law and BOY will you be surprised by all the crap that’s going on
that’s in violation 8) see you tomorrow!
First Amendment Speech
• The U.S. Supreme Court (Pickering v. Bd of Ed.) has long recognized that
employment retaliation for free speech is improper when matters of “public
concern" are greater than the interest of the State as an efficient employer.
• The Supreme Court has found the following speech to be of public concern:
• The allocation of school funds, and the “real” reasons why additional tax
revenues were being sought
• A principal’s memorandum relating to teacher dress and appearance
• A School District's allegedly racially discriminatory policies
• Government inefficiency and waste … as a concerned citizen
• Staff psychologist criticizing a hospital for unnecessary psychotropic drugs,
working conditions, and inadequately supervising a penal code patient
• The manner in which police/fire fighters performed on a particular occasion
• Adequacy of funding for emergency services, environmental violations
Policies
• All screening/disciplinary reviews should ensure that they are
in keeping with established (updated) policies, and after proper
training.
• H.R. should be involved early, to ensure that front-line
supervisors are guided on these important laws.
What sounds right/responsive at first blush in response to a parent/public/coemployee complaint may be a serious violation of protected rights
• All standards must be applied consistently (i.e., favored
teacher cannot be allowed to develop a special Facebook site,
and “unfavored” teacher is prohibited).
Risks of not managing
• “Wrong” employees/“Wrong” results
• “Right” messaging/Fewer Claims
• Failure to take responsive action to “harassing” Facebook/Twitter,
etc. posts can create “hostile environment” claims (entity and
individual liability)
• Failing to counsel employees wrongfully places them at risk
(independent exposures)
These Are Often Front Page Issues
Front Page Issues Can Lead to Job “Modifications”
HOW is the information helpful
in claims and litigation
• The information found by these simple searches is
considered public information and can be utilized for
criminal, civil, and administrative matters.
• A social media user has no expectation of privacy
when they share information with an internet provider.
• Users can generally limit who has access to their
information through privacy settings – but often don’t use
them
• A “friend” may voluntarily provide you with access
• Becoming a “friend” under false pretenses (such as a false
profile, etc.) is unethical – use a subpoena
Information can be Used in
a Variety of Contexts
•
•
•
•
•
•
Plaintiff/Defendant Research
Counsel Research
Judge & Jury Research
Witnesses
Information/Documentation/Videos
Inconsistent
Statements/Impeachment
DISCOVERY ORDER
• In EEOC v. Simply Storage Management LLC, a magistrate judge ordered employees to
produce profile information from their Facebook and MySpace accounts. The judge
found that any entries in the users’ profiles, either public or private, related to or
referring to the allegations in the complaint were discoverable. This was true
regardless of whether the user had set their profile to a private status.
• In Bass v. Miss Porter’s School, a case again involving a discovery request for social
media information, the court upheld the request, stating:
• Facebook usage depicts a snapshot of the user’s relationships and state of mind at
the time of the content’s posting. Therefore, relevance of the content of
[p]plaintiff's Facebook usage as to both liability and damages in this case is more
in the eye of the beholder than subject to strict legal demarcations, and production
should not limited to [p]plaintiff's own determination of what may be reasonably
calculated to lead to the discovery of admissible evidence.
• In Barnes v. CUS Nashville a magistrate judge found a creative way to resolve the
parties’ disputes over a request for plaintiffs’ Facebook posts. The Judge stated that he
would create a Facebook account and have the plaintiffs accept him as a “friend” so
that he can review their profiles in camera. He orders plaintiffs to provide their email
address so that he can locate them on the website.
Key Considerations
• During the initial investigation, at least consider a preliminary
social media review (“Google them”)
• For questionable liability/damage claims, conduct a more
thorough social media review before issuing discovery/taking
depositions
• Before “key events” (settlement conferences, trial, etc.) re-check
social media for potentially updated information that may provide
new/different information
• Make the effort with jurors (they are often more honest on social
media than in voir dire)
People are boxes
They are often closed; it’s your job to get past the hard exterior ….
Be Innovative …
Outside the Box is now …. The “Box” …
Protect the Pool ….
Make Sure you get all
the Information
Search …
and search again
Tell Others …
Counsel, Members, etc.
Training/Sharing is Good
Update those Policies;
Make sure they are
legal and practical
Be careful … Social Media sources are not always
accurate … double check
Robert Cutbirth
135 Main Street, Suite 700
San Francisco, CA 94105
415-617-2235/[email protected]
106 "K" Street, Second Floor
Sacramento, CA 95814-3213
Marc Leibowitz
619-233-9898 [email protected]
600 B Street, Suite 2300
San Diego, CA 92101-4596
Demetra Johal
916-441-6045
[email protected]