Rogers & Tartaro On Main Street : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

You have the right to remain silent … about some things . . . when interviewing for a job. It's well known that some questions are off-limits because, for example, they could imply a discriminatory intent. But, do you have the right to keep your Facebook password and login info to yourself when you’re applying for a job? The ACLU says that you do, and they’re going after the Maryland Division of Corrections (MDOC) over the issue.

According to the ACLU, the Division of Corrections “has a blanket requirement that applicants for employment with the division, as well as current employees undergoing recertification, provide the government with their social media account usernames and personal passwords for use in employee background checks.”

An NBC report states that the MDOC simply wanted to make sure that their employees are not engaged in any illicit activities. The MDOC has issued their own statement, defending and explaining their actions: “DPSCS reserves the right to inquire about a possible candidate's Facebook account during the hiring or re-certification process. However, it does not require/demand it as stated in the ACLU release. A candidate's refusal is not grounds for disqualification.”

The motives of the ACLU and plaintiff are not our concern. Neither is MDOC’s claim that a candidate or current employee will not be prejudiced by failing to disclose his or her Facebook information. What we do find interesting is that once again, the issue of electronic privacy within the workplace has arisen, and the courts are being forced to examine how far employers can go, and what liability the employee has.

The latest news is that the MDOC policy has been pulled for the next 45 days as it goes under review. However, as we have said in these columns before, there should be no realistic expectation of privacy anywhere on the internet. Facebook, currently popular and with a high profile, tends to be in the middle of these controversies but the concern should not be limited to this one service.

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In a post in this week’s Connecticut Employment Law Blog, Dan Schwartz brings up some compelling points. He notes that while it is legal to “friend” a student or subordinate, it may not be prudent for a teacher or supervisor. 

I am in full agreement. But, I would like to point out that there may be some limited instances (“limited” being the key word here) where involving students or subordinates with social media projects might make sense.  For example, a site allowing students to share research results for a class project need not contain highly personal material.  A site set up for school (or company) alumni to share photos of their reunion also need not include highly personal material. The question is: can limits be maintained on the use of the tools so that the constructive purposes are not canceled out by the downside risks? 

CNN recently featured a report about an elementary school in Iowa that uses Facebook to keep in touch with parents and let them know what’s going on in the classroom. Facebook statuses are updated daily, often by the children.   A teacher featured in the story remarked that she wanted to show children that “social networking can be a positive tool.”

Teachers shouldn't necessarily shun social media if they can identify projects relevant to the educational goals of their students, who spend a great deal of time online. However, choosing the right tools such as district chat sites or blogs may be a safer option.    

As we’ve said before, paraphrasing and extending a recent court decision, no reasonable person can have an expectation of privacy regarding material published on the internet.

* photo courtesy mediabistro.com

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Although we don’t practice criminal law, recent articles such as the one in ABC News should spark anyone’s interest. The issue is whether law enforcement authorities can or should become online “friends’ to pursue their criminal investigations.

ABC News reports that an internal Justice Department document states that U.S. law enforcement agents are using social media to surreptitiously collect information on suspects. According to ABC News, the document, obtained through a Freedom of Information Act lawsuit, reveals that agents are browsing targeted individual’s postings, personal photographs and video clips, as well as identifying their friends and relatives. Additionally,according to the report, agents may disguise themselves with false online profiles and exchange messages with suspects.

This, of course, brings up a plethora of issues about privacy and crime-fighting. Where does one draw the proverbial line? How much of the evidence from social networking is admissible in court? The alleged perpetrators in the popular NBC “To Catch a Predator” series claimed entrapment. Fortunately, it seems many suspects are reckless, posting photos of themselves on their Facebook pages enjoying the spoils of their illicit activities. 

Recent cases seem to indicate that individual states will be controlling these decisions. California, for example, seems to be more protective of social media privacy than New York.  

We’ll keep a close eye on these developments. In the meantime, we advise everyone, whether a Good Guy or Bad Guy, to check privacy settings. And, know who your “friends” are.

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Last week, Facebook Founder and CEO Mark Zuckerberg made a much-anticipated announcement about the 500 million user website. Before the press conference, there was much speculation and excitement about what Zuckerberg would reveal, but he simply announced the following changes: 

• tighter control over Groups to more easily share things with a limited subset of "friends"
• an option to download everything you ever uploaded to Facebook
• a dashboard in the privacy interface that will more clearly show which Facebook applications have access to your data, and when each application last took advantage of that access.

According to the New York Times, the changes were in response to Facebook’s confusing privacy policy and how it was sharing users’ information on the Web. The Times noted that the press conference was meant to position Zuckerberg as the user’s champion; Facebook was making these changes in response to their comments. After all, according to the Times, he repeatedly said, “it’s not about the money.”

Facebook users who are concerned about privacy will probably find this set of changes to be a step in the right direction. Apparently, they can now have a better look at how applications use their information to personalize their experience.

Also, according to the official Facebook blog, the new Groups setting will allow users to communicate with small groups of friends, and to share things in a “private space.” The default setting is Closed, which means only members see what's going on in a group. This, of course, does not preclude members from adding their own content, or sharing yours with others.

Nick Bilton of the Times observes that some of the privacy issues inherent in Facebook would be reduced if all the settings were “opt-in”; everything should be locked until you open it up, rather than the other way around. 

Since our practice includes litigation, often employment litigation, I offer additional perspectives on these changes (1) even information in “private space” is most likely “discoverable” in litigation - - that means you may have to give it up or answer questions about it if you are party or just a witness in a lawsuit; (2) there is a lot of buzz in the legal blogosphere about what information employers can or can’t use and for what purposes (hiring, termination) and I’m sure some general ground rules will soon develop - - but if the information is “THERE”, can any rules be effective, in a practical sense, to restrict its use?

All in all, the social media sites can be helpful in protecting our privacy, but ultimately we all still have to exercise individual discretion.

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We’ve been asserting for a while that social network access is becoming a significant area of employment law. Take, for example, a recent California case involving a waitress who was fired for making disparaging remarks on her Facebook page about a customer. According to the California Employment Law Report, the court ruled that, under the circumstances of that case, postings to social networking sites are not private.

It seems we’re developing a legal theory that employers can view, and possibly even act upon, information their employees put on the Internet. To paraphrase an earlier California court ruling, no reasonable person can have an expectation of privacy regarding material published on the internet.

But it can go even further. One employer in Montana asked job applicants to provide the login information to their social networking sites, so the employer could view those sites, thereby learning more about the potential employee.

At some point, perhaps state legislators or the courts will specifically define what employees can and cannot expect regarding online privacy. Until that time, however, employers need to extend their policymaking to cover social networks.

Facebook isn’t going away anytime soon. According to Newsweek, there are now over 500 million members. A final suggestion to disgruntled employees, or anyone who may have had a bad day at the office: keep it off your Facebook. There are clearly a lot of people watching.
 

 image, courtesy news.com.au

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