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

This blog has featured several entries about controversial Facebook posts and the troubles they can cause employees, but it seems that saying something in 140 characters (or less) may be even more damaging. Careless Twittering has been in the news and cost several people their jobs or business ties as of late. For example:

• Insurance giant AFLAC fired comedian Gilbert Gottfried for tweeting about the devastation in Japan (Gottfried is the voice of the trademark Aflacduck). Gottfried, known for his offhand and often vulgar comedy, posted some insensitive tweets about the tsunami. AFLAC immediately broke their ties with the comedian.
• The New York Times reports that an employee of New Media Strategies, an agency handling the Twitter account for Chrysler brand, commented on his Twitter account that “I find it ironic that Detroit is known as the Motor City and yet no one here knows how to [expletive] drive.”
• Even law officials are not immune. Indiana Deputy Attorney General Jeff Cox was fired for remarks he made on Twitter, suggesting riot police in Wisconsin should use live ammunition when clearing protesters out of the Wisconsin Capitol building.
• Last year, CNN said it dismissed a senior correspondent who used her Twitter account to praise a Muslim cleric associated with the terror group Hezbollah (removing any sense of objectivity to her reporting).

We lean towards the point of view that one should not blame the tool when it has been misused (like a Little League shortstop throwing down and kicking his glove when he makes an error). Twitter (and similar social media tools) can be a very effective tool for marketing, building relationships and communications.  Social Media tools can also create serious issues for employees and their employers. The New York Times reports that George E. Belch, a marketing professor at San Diego State University, reminds employers that “there are people in your company who forget when they post on a blog, on Twitter, on a Facebook page, that it’s out there — and it’s out there at warp speed.” In other words, messages can go “viral” and cause havoc (as in the cases above).

As we’ve said before, it’s important to think carefully about online postings, especially if you’re being paid to represent an organization. And, don't forget: in many ways we all represent our organizations and we do so 24/7. We should all practice being responsible, and being prepared to be accountable for what we write.

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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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Mom always said, “think before you speak,” but nowadays that advice extends to “think before you type” – especially when it’s on your employer’s keyboard.

In the case of the City of Ontario, CA v. Quon, the U.S. Supreme Court upheld the rights of employers to monitor employee communications, in the public and private sector. Mr. Quon had asserted that he had been subjected to an unreasonable "search" under the Fourth Amendment of the Constitution because the city of Ontario, his employer, had read the messages on his pager.

This is a California case but was watched in all jurisdictions because it could be very influential.  However, as True/Slant points out, this opinion may be limited in its applicability to other employees, since Quon works for the government and the law differs somewhat for public employees.

The electronic monitoring policy of the police department, for whom Quon worked, was not very precise or completely distinctive. We join many other bloggers who have commented in asserting that common sense – and now the law – dictates that employers should eliminate ambiguities in their policies. This, however, may be easier said than done, considering the emerging concepts in this new field – including the lack of technical proficiency from the Courts. (The Wall Street Journal Law Blog reported that our esteemed Supreme Court judges are not exactly “tech-savvy,” and needed some explanations regarding pagers, cell phones, etc.)

When it comes down it, why would an employee take a chance to text on an employer’s device? Perhaps because it’s convenient, and who’s really going to carry two electronic devices, one for professional and one for private use? An employer’s device is probably better technology than something one would purchase for oneself. But, if the messages are really meant to be private, is it worth taking the risk?
 

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We’vecautioned about e-mail before. The New Jersey Employment Law Blog recently posted an interesting court decision that involved a number of issues, among them whether the attorney-client privilege trumps employer policies.

In the case, Stengart v. Loving Care Agency, Inc., an employee used a company issued laptop to send an email to her attorney through a personal, web-based email account. Could the employer access and review those communications if they’re found on the computer's hard drive? In broader terms, does a company's electronic communications policy trump the attorney-client privilege? In this particular case, no -- but it’s a close call.

We usually would not cover a New Jersey decision because it is not legal precedent for New York and Connecticut. And there is still another level of appeal available to the litigants.

However, what's really interesting is that the e-mails were on a web-based, password protected account. But, to quote the Court’s description of what happened:

"After plaintiff filed suit, the company extracted and created a forensic image of the hard drive from plaintiff's computer."

Isn’t technology great?

We liked two “lessons” articulated by Frank Steinberg of the NJLB, so we quote:

1. For everyone: despite the ruling of this case, never use company-owned computer equipment for any personal communication that you wish to remain confidential. Just don't. Period.

2. For companies: review your electronic communication policy right away. If there are ambiguities in it, clarify them. Courts are going to look not at your intent, but at the reasonable expectations of your employees based upon a variety of plausible readings of the policy.

Attorney Joe Wilson blogged that in a  New York case, an appellate court found that "a 'no personal use' policy combined with a policy allowing for employer monitoring and the employee's knowledge of these two policies diminishes any expectation of privacy." The court held that the emails were not protected, and were properly discoverable in litigation.

And what about the issue of the increasing number of telecommuters? How much privacy can one expect on a computer used for both personal and business purposes?

I'm sure we'll be hearing about many more cases, in many more jurisdictions.

Image:  Laptop; courtesy of Wikimedia Commons and Jon Sullivan

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