Is Social Media Legislation Coming Your Way?

Posted on March 21, 2012 by Rob Radcliff

                         

Legislation regarding social media is on the rise.  Commentators spend a lot of time monitoring the implications of social media in the employment and lawsuit context but the judicial branch is now weighing in as well.  A number of legislatures have already enacted laws that address what happens to social media accounts like Facebook or Twitter upon a person's death.  Some states are also considering restricting potential employers from requesting a person's social network password during the hiring process. 

Where else could we see legislation?  Like cases, the scenarios are endless:  (1) laws that address employers monitoring employee activities; (2) use of social media by companies that conduct background screens both in and out of the hiring process; (3) use of social media screening in university or school applications; (4) the use of social media in lawsuits both criminal and civil; and (5) even use of social media in credit checks and loan applications. Of course, the use of social media information by companies like Facebook and Google are discussed routinely as they change their privacy policies.  Certainly, legislatures will weigh on privacy issues as well.

The point is, as we contribute more and more to our online history through social media, a relatively new phenomena, there will be more ramifications for what that information can be used for by employers, advertisers, government agencies, etc.  The legislative branch will continue to address the use of social media through legislation instead of letting the common law evolve because so many people are now online and it is a sensitive topic.  We will continue to monitor this. 

 

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HR and Social Media Round Table July 22 & 29

Posted on July 19, 2011 by Rob Radcliff

 

                                

Tune into the Proactive Employer for a roundtable social media podcast that a number of sharp lawyers participated in last week.  Should be something for everyone. 

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Upcoming Podcast

Posted on July 1, 2011 by Rob Radcliff

 

                                

On July 14, 2011, I will be a part of a panel discussion on social media on the Proactive Employer podcast - http://www.blogtalkradio.com/theproactiveemployer. Please check it out.

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Orwell Part II: Rethinking Personal Privacy

Posted on May 24, 2011 by Rob Radcliff

                               Photo courtesy of K. Berberi.

The post from last week raised some interesting question regarding the employer monitoring of employee social media communications.  The takeaway - Do we need to rethink the sacrosanct division of our employment versus private lives? 

As social media use continues and increases, individuals are creating more and more online content. With more and more content out there, employers and potential employers can learn about the ongoing activities of their employees and job candidates. Before we even reach the issue of whether employer monitoring of prospective or current employees is proper, the first question is do we as a society need to accept the fact that by opting in to social media, we have essentially opted out some of our privacy rights?

As draconian as that may seem, the answer is yes.  Once we engage in these types of platforms, we are to some extent losing privacy rights, and what constitutes privacy has fundamentally changed. Employers, business associates, friends, and other voyeurs are going to look at this type of information and in many instances we want them to do so. Why else would we post?

It would seem likely that most people would accept the proposition that the use of social media leads to less privacy. After all, we literally let in some cases hundreds of our nearest and dearest friends view status updates, pictures, and information about our likes and dislikes.   But, how much is too much?  Where is the line?  There isn't one yet.

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Privacy Fights: Who owns your text message?

Posted on April 22, 2010 by Rob Radcliff

                                          

 

You've probably seen friends, coworkers, family members, and strangers glued to their "smart phone" of choice as if it is somehow an appendage.  The use/addiction to these items is increasing as we become more and more mobile.  A couple of interesting stats courtesy of CNN:

A Pew study found in January that 80 percent of American adults have cell phones and 30 percent of them access the internet on their phones. In 2000, 50 percent of American adults used cell phones, according to a Gallup Poll, and phones rarely supported access to the web.

More than 28 percent of employers fired a worker for e-mail misuse in 2007, compared to 14 percent in 2001, according to the American Management Association.

We can text, email (from both work and hotmail accounts), tweet, and post on Facebook from these devices.  Some of the devices may actually be provided by our employer or the employer may pay for data/wireless service.  So does an employer have the right to see those texts, posts, or emails? 

The United States Supreme Court is considering a California case where the Ontario, California Police Department reviewed sexually explicit text messages that a police officer sent from a police owned electronic device.  The Ninth Circuit previously held the police department's actions violated the officer's privacy rights because its actions constituted an illegal search and seizure.  The case was argued before the Supreme Court on Monday. As usual, SCOTUSBLOG has an excellent analysis of the case and play-by-play from the oral argument.   

Many think the Court will limit its opinion and any ruling will have limited implications.  Nevertheless, employers and employees should be cautious.  Employers have the right to look at company email in most circumstances, that seems to be accepted.  As previously discussed here, whether employers can review gmail or hotmail emails that emanate from a company computer or mobile device is unclear.  The same is probably true for texting or social media posting.  Now, the line becomes blurrier if the mobile device is owned by the employee but the service is paid for by the employer. 

Employers must proceed with caution and on a case by case basis before accessing these types of communications.  Of course, they could be very important in situations where an employee may be taking trade secrets or preparing to violate a non-compete agreement.  As is a recurring theme on this this blog, employees should assume that any electronic communication may ultimately be published to the world.  Though emails and texts are more convenient, phone calls and face to face meetings are still an option.

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