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Dealing with Opposition to Social Networking Policies, Part 3

Written by Cara Donlon-Cotton

Many law enforcement agencies have instituted—or are trying to institute—social networking polices, only to experience some backlash from line officers, union groups and/or fraternal organizations. As with any new initiative or policy, there will always be opposition and a degree of fear of change. Also, as with any new initiative or policy, so long as the rationale and wording are sound, the opposition can be as noisy as it wants to be, but the policy will still stand.

In July 2010, LAW and ORDER ran a sample Social Media Policy (available at www.hendonpub.com/resources/articlearchive/details.aspx?ID=207930) that many agencies chose to implement. Some agencies have implemented their own version of a social networking policy, while others chose to use a different sample policy as their guide.

No matter what version you’re using, you are bound to hear the same arguments: the policy violates the officer’s right to free speech (1st Amendment); restrictions to online activity violate the officer’s right to privacy and are a due process violation (1st and 14th Amendments); and the policy violates the Federal Stored Communications Act (18 U.S.C 2701).

This is the third part of a three-part series of articles addressing the three concerns listed above and offering some relevant case law and legal decisions that address these issues. Other articles in this series are available online at www.hendonpub.com—click Resources and then click Article Archives.

Federal Stored Communications Act

The Federal Stored Communications Act basically establishes the rules for when an electronic communications service can release the information and contents of a customer’s usage—think Internet service provider (ISP) or wireless company.

The act protects users from having their information disseminated, and it penalizes those who unlawfully release or access the information. It establishes how information can be accessed, and it also addresses the fact that its rules do not apply to “electronic communication [that] is readily accessible to the general public.”

As outlined in the sections about free speech and privacy, the use of social networking is clearly considered in the realm of “electronic communication [that] is readily accessible to the general public.” However, as was decided in the New Jersey restaurant case Pietrylo v. Hillstone Restaurant Group, the employers were found to have violated the Federal Stored Communications Act even though the online activity involved a social networking site (MySpace).

Why? Because the means the employers took to access the information violated the act by forcing another employee to give up her user name and password so the employers could gain access to the MySpace group.

Here’s another example. Until June 2009, job applicants in Bozeman, Mont., found this as part of their employment procedure packet: “Please list any and all current personal or business Web sites, Web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.”

Digital privacy groups and old-fashioned privacy groups from around the world generated so much attention and outcry to the practice that Bozeman city officials struck the clause from its background application portion of the employment packet. A test case never resulted from it, but if it had, the Federal Stored Communications Act would have figured prominently in it.

You can ask your job applicants to list their social networking sites because the act allows for voluntary divulging of information, however, to demand access to their user names and passwords would be a violation of the act.

Now, if an applicant refuses to give you access to his or her social networking pages (i.e., your applicant background investigator sits with the applicant as he or she opens the site), then you can deny employment to the applicant as they have not complied with part of the required background check.

You don’t have to worry about your social networking policy violating the United States Constitution or the Federal Stored Communications Act if you have taken the above cases into consideration. If your officers—or their unions—have an issue with the policy, re-evaluate it and see if it passes the litmus tests outlined by the courts, but do not be surprised if you find yourself as a test case. After all, the law takes some time to catch up with technology. So far, the law is on your side.

Cara Donlon-Cotton is a reformed newspaper reporter and a former course developer and instructor with the Georgia Public Safety Training Center. She currently teaches Media Relations and Public Relations to local law enforcement agencies. She can be reached at cdonloncotton@yahoo.com or through the Public Safety Training and Education Network at http://psten.com.

Published in Law and Order, Mar 2011

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